McDonald's coffee lawsuit revisited

Great Debates
161

BLOWERO –

Ah, jeez. Now you’ve disarmed me. You didn’t offend me really, it’s just that this is not really a subject close to my heart – as opposed to my head, it’s intellectually very interesting – and I’m dealing with another possibly more offending thread in the Pit – though that’s going okay so far . . . and I just got kind of tired, y’know?

I really appreciate your apology, though I don’t know that it was either necessary or deserved. It’s just . . . well, the Pit thread again. In light of that, I find it refreshing in the extreme to deal with a person of good-will who very frankly says “Whoa, did I offend you? Sorry about that.” Thanks for that – though, like I said, you didn’t hafta.

Now, on with our show:

I didn’t say “downs the whole cup of coffee within 2 minutes.” That’s not the issue here. The issue is that superheated coffee presents a danger to people who try to drink it. Or who are unfortunate enough to spill it. The land-speed record for sucking down java is beside the point.

From my course materials – and, yes, I’m fully aware of just how shitty a cite that is. “Trust me! Pay no attention to that man behind the curtain!” But what can I do? Anyway, you can also look here:

Emphasis added. (Pointless aside: Perhaps only the other lawyers out there know how much it pains a defense attorney to direct anyone to a pro-plaintiff site like the “Consumer Attorneys of California.”)

Anyway, I don’t have the specifics on the testimony, such as who said what or how the question was phrased. Sorry.

Obviously not. But if you know that it’s too hot to consume immediately, and you concede that you know that SOME people will consume it immediately, then arguably you have a duty to make sure it is immediately consumable, right?

I did not make it up. I was responding to other posts talking about cost-benefit analyses and the juries inability to grasp them. Though how would their failure to do a CBA help in their defense?

But the point is not no injuries at all, but no injuries at all of this severity. Look, you can serve the coffee 20 degrees cooler without affecting the taste. That reduction in temperature will presumably produce a resultant reduction in these severe injuries. You go from an incident in which no one – no matter how young or agile – could avoid third degree burns, to an incident in which maybe fewer people are burned, or at least burned so badly. The question is: Was it reasonable for McDonalds to fail to take the precautions it could have taken to prevent injuries of this severity – given the ease with which the precautions could have been taken, and the severity of the injury prevented. No one is saying “no coffee.” “No coffee” or “coffee hot enough to literally burn your lips off” are not the only choices.

BLOWERO, do you see that the risk and prevention is an inverse continuum? Higher risk = lower prevention; higher prevention = lower risk. Do you see that at one end is “no risk” and at the other is “no prevention”? An incident may fall anywhere along that continuum, right? Just because we conclude that an incident falls too close to the “no prevention” end, that doesn’t mean that the only acceptable position is all the way down at the “no risk” end. Is it safe to fire a gun? Is it justifiable to smack someone? Is it okay to put oil directly on your skin? These are not “yes or no” questions; they depend on the context in which the action is done. Similarly, it is too facile to say “Drinking coffee is safe” or “people should know that drinking coffee is unsafe.” Drinking coffee is not safe, if the coffee is heated to the point of causing third-degree burns upon contact. People should not be charged with knowing that drinking coffee is unsafe, if there’s absolutely no reason to think they’d expect it to be served to them in an unsafe state.

And according to the site above, the jury was told that 180 degree liquid will produce “full thickness [meaning, third degree] burns to human skin in 3 to 7 seconds.” So I ask you again: Are you seriously arguing that it makes a difference whether the burn was done in one second (instantaneously) or 3, or 7? Why?

162

blowero, I’m not arguing that McDonald’s willfully set out to injure anyone to make more money. Instead, I’m arguing that McDonald’s set out to make more money than the industry norm. This is the “quality” point - hotter coffee lasted longer, which meant less wastage - McDonald’s made more money on each pound of coffee grounds than did Burger King, Wendy’s, etc., because they had to throw less of their coffee away. And this point is key - why did other coffee sellers brew their coffee to a lower temperature, when they would have gained the same benefits as McDonald’s by brewing it hotter?

Negligence law doesn’t care about what has happened; it cares only about whether the conduct of the party charged with negligence was that of a reasonably prudent person. I’m going to walk through the Restatement (Second) Torts (“R2T”)concerning standard of conduct.
First, is the risk recognizable to a reasonable person? (R2T s. 289). The evidence of McDonald’s competitors’ practice indicates that it was. The only reason I can think of that the competitors did not brew their coffee as hot is that they recognized a risk.
Second, was it common knowledge in the community that a “qualit[y] and habit of human beings” is that, from time to time, they will spill coffee on themselves and purchase coffee from their cars? (R2T s. 290) Again, yes.
Third, would a reasonable man recognize that serving coffee at that temperature involve a risk of harm to another? If yes, “was the risk … of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it was done?” (R2T s. 291)
Self-evidently, serving coffee at that temperature involved a risk to others.
As for the utility of the act, “the law attaches utility to general types of classes of acts as appropriate to the advancement of certain interests rather than to the purpose for which a particular act is done.” R2T s. 291 Comment E. Which brings us to …
Factors to be considered in determining utility (R2T s. 292)
they are (a) the social value which the law attaches to the interest which is to be advanced by the conduct; (b) the extent of the chance that this interest will be advanced by the particular course of conduct; and © the extent of the chance that such interest can be adequately advanced by another and less dangerous course of action.
The commentary discusses that public interests are given greatest weight, but notes that “*t may be an interest which is primarily of private advantage, but the public may nevertheless be interested … because the general public good is advanced by the protection and advancement of such private interests… The irreducible minimum of risk both to employees and outsiders which is inherent in manufacture is not regarded as unreasonable, not so much because manufacture is profitable to those who carry it on, but because it is believed that the whole community benefits from it.” s. 292, Comment A.
This begs two questions. First what is the public interest in the provision of coffee? Obviously, there is some; 10 billion cups a year are sold. Second, what is the irreducible minimum of risk? Obviously, there is a residual minimum of risk - coffee served at 160 is also potentially dangerous. But McDonalds’ competitors’ have established that it is possible to profitably provide for the public interest - giving us grunts coffee - at a lower level of risk.

Next in the balancing test is the magnitude of the risk. The factors are: (a) the social value which the law attaches to the interests which are imperiled; (b) the extent of a chance that the conduct will cause injury; and © the extent of the harm likely to be caused.* (R2T s. 293).
Commentary: “As the social value of the interest imperiled increases, the magnitude of the risk which is justified diminishes. Conduct which would be unreasonable if it created a risk of harm to life of limb might be justified if it should imperil only some property interest …” R2T s. 293 Comment A.
“As the extent of the change of harm increases, the utility required to justify the risk increases proportionately.” Comment B
“If the act is one which involves only a risk of some very slight harm to even an important interest, it may be justified, although a similar likelihood of a more serious harm would make the risk unreasonable.” Comment C.

Here, we have an extremely important social value imperiled (injury to the person) and a serious potential extent of harm (3d degree burns). Counterbalancing that is a low chance of harm (very few actual injuries compared to coffee served - be the number of actual injuries 700 or 70,000)

Overall, IMO the case for negligence is there. The social utility of serving coffee at high temperatures is very low - companies can make profits serving coffee at a lower and safer temperature. The magnitude of risk is middling - an important social value (safety of the human body) is implicated, and the injury to the body can be very serious, but the odds of actual injury is very low.
The balancing test comes out in favor of negligence - the low social value does not outweigh the middling magnitude of risk.

Punitive damages are a different story. I’ll come back to them later (if I have the energy).

Sua

*there is a fourth factor “(d) the number of persons likely to be injured,” but the Commentary notes that this factor does not apply where only one person will be harmed at a time by the conduct.

163

SUA, you are the wind beneath my wings.

:slight_smile:

164

Jodi, does that mean I can see the girls?

D&R

Sua

165

:o

I have absolutely no idea what you’re talking about.

[sub]That’s my story and I’m stickin’ to it.[/sub]

166

No one has addressed the main concern that still bothers me - you all are still claiming that McDonalds coffee was ‘unreasonably’ hot.

How do you justify that statement in light of the fact that they have served billions and billions of cups of it, much of it to people in moving vehicles, and yet have had only 700 people burned enough to seek compensation?

As I said before, that kind of defect rate is astounding. In an environment like that, it’s almost unbelievable. If their coffee was dangerous to the point of negligence, there should be MILLIONS of burned people.

Where are they?

167

As has been pointed out more than once, in serving their coffee at 185 degrees, McDonald is acting in accord with the opinion of many experts, who say that such a temperature is necessary in creating the best coffee available.

Because, for the third time, it’s COFFEE. COFFEE is HOT. When you order a cup of coffee, you are supposed to be aware of these facts. Which may be why coffee is a beverage often denied to children.

McDonald’s could have changed to serving only iced drinks, if they had done one of those cost-benefit analyses to which you so strongly object. But then some clown would sue them because he damaged his nose by using the little spoons they supply to snort coke with.

If you build an idiot-proof system, Nature builds a bigger idiot. Even if McDonald’s took unreasonable steps to avoid even the tiniest modicum of risk, you would have some bloated half-wit suing them because he gained too much weight from eating there five times a week.

Oh wait…

Regards,
Shodan

168

Sam . I am not much of a debater nor am I good at logic.

But wouldn’t an analogy be more along the lines of an infant seat for a car? What is the XYZ company made and sold 50 million infant car seats per year. They don’t realize it but there is a fatal flaw in the design, but it won’t be noticed until an automobile is involved in a crash where the infant’s car is involved in a crash and rolls over, wherein the car seat collapses and kills the child.

The car seat is truly a life-saver in normal car crashes, performing well when the parents car doesn’t overturn. There are thousands of such normal crashes every year.

But in 25 cases per year, the child is killed because of the defect. If the XYZ were told after the 15th or so child was killed that they might want to change the design, they could always decide to justify not changing it in that it protected thousands of infants every year in crashes. They might just decide that redesign and retooling is not cost effective. (And, of course, we have a Consumer Product Safety Commission to oversee this).

Please don’t take my hypothetical numbers as important. Just that millions of the seats had the defect, but that defect only came into play in a very statistically small number of incidence of product failure.

Billions of McD’s coffees don’t fail every year. But when they do, people seem to get hurt. If 700 McDonald’s kiddie customers got hurt bad enough to be treated medically every year due to choking on a new shaped chicken nugget, I’m sure that nugget wouldn’t be on the menu next year. Or it would be redesigned.

169

Sam Stone:

Jesus Christ on a toboggan. 700 burned enough to receive compensation. How many sought compensation is a diffeent story entirely, and neither you nor I have the numbers on that.

170

Did you make that one up? If not, who did? I want that on my forehead.

171

Glad you decided to come back, Jodi. And I’ll try to lay off the rolleyes smilies.:slight_smile:

Oh, and please forgive me if I get carried away and say something that sounds smart-assey, because I think you’ve made a lot of very good points.

No, actually that’s great. Unfortunately, I don’t think anyone on this board has access to a trial transcript, so we’re having to make do with second-hand sources. I still don’t believe McDonald’s was culpable to the tune of 3 million bucks (the original jury award), but it sure sounds like they had their heads up their butts at the trial. But then, who knows? If you give paralegals enough time to nose through all the files of a giant corporation like McDonald’s, I’m sure they can dig up plenty of stuff to impeach witnesses.

The thing that chaps my hide about it is it doesn’t make sense - coffee will cool off pretty quickly, but it doesn’t ever heat back up once it’s in the cup. So I suppose whatever percentage of customers who drink it right away are saved that 700 out of 10 billion chance that they might get burned, and the rest of us who are buying it on the way to work or home or wherever we are going are SOL.

Actually, the issue was not whether it was consumable, but whether there was a danger of injury from spilling it. To establish the existence of a duty, wouldn’t you have to show:
a.) That the temperature was dangerous, in that there had been a SIGNIFICANT number of injuries?
b.) That the suggested remedy would have prevented the danger?

I don’t see how either point was demonstrated in the trial. It was your basic battle of the experts: The McDonald’s expert said that 160 degree coffee could produce 3rd degree burns just as 180 degree coffee could. But the plaintiff’s expert said 180 degrees would produce the burns in 12 to 15 seconds, rather than 20 seconds. I’ll repost the quote here:
180-degree coffee like McDonald’s served may produce third-degree burns in about 12 to 15 seconds. Lowering the temperature by 20 degrees (to 160 degrees Fahrenheit) would increase the time for the coffee to produce such a burn to 20 seconds. Those extra 5 to 7 seconds in many cases could provide adequate time to remove the coffee from exposed skin, thereby preventing such burns.
The jury apparently believed that the extra 5 to 7 seconds was crucial, and that McDonald’s should have consulted a burn expert so that they would have known about it (but I guess it would have to be the PLAINTIFF’S burn expert, not McDonalds’). Apparently it didn’t matter that Ms. Liebeck did not remove the coffee from her skin AT ALL. Besides which, if you can’t get your pants off in 12 to 15 seconds, are you really going to be able to do it in 20 seconds?
[Of course we have a discrepancy here, in that there is apparently a different account of the trial that says the figure is around 3 seconds. That’s the problem when you only have second-hand sources.]

Hmmm… I think that’s all hypothetical. I haven’t seen an actual source that refers to a cost-benefit analysis.

So you would fault McDonald’s for doing a CBA, as well as fault them for NOT doing a CBA?

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).

I just don’t see where it was proven that 160 degree coffee would result in NO severe injuries.

Not true:
www.kentlaw.edu/classes/rbrill/torts-fall-99/evening/coffee.html

and…

Actually, it would be more like "Coffee hot enough to produce 3rd degree burns if you hold it next to your skin for 15 seconds, or coffee hot enough to produce 3rd degree burns if you hold it next to your skin for 20 seconds. (And remember that, percentage-wise, virtually zero people were actually burned, and we don’t even know how many of those even had 3rd degree burns, if any).

Hold the phone, here. YOU suggested that McDonald’s had a duty to have “literal zero” injuries. You previously argued that virtual zero risk is not enough, and that literal zero risk is the only acceptable position. Now you argue that zero risk is NOT the only acceptable position.

You are drawing an arbitrary line on the continuum, and saying that McDonald’s should have been below the line. Let me temper that - it’s not arbitrary, it’s based on a comparison to other fast food places. But I really don’t buy the argument that McDonald’s had a duty to lower their serving temperature BELOW WHAT COFFEE EXPERTS RECOMMEND, based simply on what the other fast-food joints were doing. I mean, seriously - have you ever had Taco Bell or Burger King coffee? It tastes like brown crayons dissolved in tap water out of the spigot.

All I can say is I disagree. I think everyone knows that coffee will burn you if you spill it on yourself. And if it soaks into your sweatpants and stays next to your skin for awhile, it will burn you A LOT.

I can’t answer that question because we are operating off of two conflicting sets of facts. One source say 3-7, the other says 12-15. I can say this, though: I believe both sides’ burn experts agreed that BOTH 180 degree AND 160 degree coffee can produce 3rd degree burns. The plaintiff’s expert claimed the difference was in the amount of time. That was the crux of the case as far as the jury was concerned. So if you discount the amount of time it takes to produce the burns, you are completely removing the distinction between the two temperatures. What you are in effect saying is: “McDonald’s should have lowered the temp to 160. People could still get 3rd degree burns, but not as quickly, although it doesn’t matter how quickly they get burned.”

And let’s say the Plaintiff’s expert DID say 3-7 seconds. You’re still just arbitrarily believing their expert over the Defendants’ expert. AND we would need to know how long the Plaintiff’s expert said third-degree burns take at 160 degrees. You have to PROVE it’s more dangerous, not just assume it.

172

Are you sure? I have seen at least a couple of sources that say 700 COMPLAINTS, not 700 successful lawsuits.

173

You call them complaints. Your link calls them incidents.

I don’t know if that means anything.

174

So what is the current temp. of McDonalds coffee?

This might tell us something.

175

blowero:

To be honest, I’ve been going by what Sua said on page one:

(emphasis mine)

It’s an important distinction. And looking at the quote from your OP:

(emphasis mine)

It seems as if it is settlements, not complaints or incidents or what have you. So, in the name of honest debate, could y’all please please please stop saying that you’ve got a 700 out of umpteen billion chance to be burned by McDonald’s coffee, or in any other way implying that the 700 figure refers to anything other than actual legal settlements?

176

Sam, “unreasonable” is a legal term - compared to the social utility of the benefits a higher temperature provides, was the increased risk a resonable one or unreasonable one to take?

You keep comparing this to product defects. This isn’t a defect case.

The reason your defect analogy is inapt is that defects are effectively unavoidable - to engineer and manfacture a product defect-free would be cost-prohibitive. The public would be deprived of the benefits of the product. To put it into negligence terms (discussed below), the social utility of the action (to provide to the public goods manufactured at the “irreducible minimum risk” - where all possibilities of defects that can be profitably removed have been removed from the manufacturing process) outweighs the magnitude of the risk, particularly if the chances of human injury or death are low.
McDonald’s higher coffee tempartures was avoidable - to lower the temperature would reduce profits, but would not eliminate them.

So, this is a negligence case that addresses the actions of McDonald’s, not the qualities of the product. For that, we answer four questions (noted in my last post, but much more verbosely :D):

  1. Did increasing the temperature of the coffee increase the risk of serious burns? Yes, period. 185 degree coffee is more likely to seriously burn someone than 160 degree coffee.

  2. Was the risk foreseeable? Again yes. An actor is “required to know (a) … the qualities, characteristics and capacity of things and forces in so far as they are matters of common knowledge.” It is common knowledge that hotter things are more likely to burn than cooler things.

  3. Was the risk avoidable? Yes. McDonald’s competitors had demonstrated that it was possible to profitably serve coffee at a lower and safer temperature. Accordingly, McDonald’s had not attempted to reduce the risk to the public to the “irreducible minimum of risk.”

  4. Did the magnitude of the risk outweigh the social utility of McDonald’s increasing its profit by serving the coffee at higher temperature. Yes. The law imputes a social utility to the profitable provision of goods and services to the public, but it attaches very little social utility to attempts to increase that profit. OTOH, as for the magnitude of the risk, the rarity of injuries definitely severly lessens the magnitude of the risk, but the extent of the harm and the interest being harmed (life and limb) increase the magnitude of risk under the law.

The balancing test of Question 4 tilts in the favor of negligence.
Increasing the temperature of the coffee provided little to no public benefit. All it did was provide a private benefit to McDonald’s. And the risk, while remote, was serious.

Sua

177

Er, change the last sentence.
“And the injury, while very unlikely, was serious.”

Thanks,
V.

178

Does anyone have any stats for how many settlements McDonald’s has had to make for other injuries?

You’re all acting as if this 700 settlement thing is some huge number that was staring McDonald’s in the face as a glaring safety issue.

On the other hand, if they have had 200,000 broken bones from floor slips, 10,000 burns from hot grease, 5,000 injuries from people catching their arms in the drive-through, 500 eye pokes from straws, 2000 cases of choking, 20,000 cases of food poisoning, and god knows what else, then seeing 700 burns ranging from relatively minor to 2nd or 3rd degree on rare occasions does not necessarily shout “Action Required!”.

It’s all about context. Sell 40 billion burgers and 10 billion cups of coffee, and you WILL have gigantic files filled with injury cases.

I’d also like to know how many of those coffee burns were serious. Some of those settlements could be someone who got a scald, went to the doctor for some topical ointment, and got McDonald’s to cough up a couple of hundred bucks for doctor’s treatments.

Were there any other coffee incidents that were as severe as the one we are discussing?

I just did a bit of reading about this case, and it seems that one of the issues was that the light was on very tight, and the woman tried to pry it off in her lap and that’s what caused the spill.

Now, I have purchased McDonald’s coffee on occasion, and they always ask me what I want in it. They mix the cream and sugar, and hand you the coffee with the sealed lid. I’m sure that those lids are on tight for a purpose - so that the coffee WON’T spill if you tilt it or squeeze the cup slightly. They are designed to fit snug and not be removed in the car.

So if this woman trys to pry off a tight lid from a cup of hot beverage while holding it over her lap, is there absolutely no assumption of risk on her part?

BTW, I just read of another case where a customer tried to sue another coffee serving company for a similar injury. The judge ruled that the danger of hot coffee is clear and well understood, and threw the case out. http://www.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=003VHA

179

Sua, blowero has mentioned in his quote that having the coffee at a higher temperature does more than provide private benefit to McDonald’s. It provides the benefit of better coffee to the consumers. So I think you are wrong to state that “All it did was provide a private benefit to McDonald’s”

180

[quote]
Now, I have purchased McDonald’s coffee on occasion, and they always ask me what I want in it. They mix the cream and sugar, and hand you the coffee with the sealed lid. I’m sure that those lids are on tight for a purpose - so that the coffee WON’T spill if you tilt it or squeeze the cup slightly. They are designed to fit snug and not be removed in the car. [/quote}

Must vary by McDonald’s. The one’s I’ve been to give you packets of sugar and individual creamers . I suspect that this McDonald’s gave sugar and cream on the side, since that’s why the woman was removing the lid. And the jury did find her somewhat at faulr, just not completely.

Regarding your cite, in that case, the person suffered second degree burns. Even if second degree burns are to be expected from coffee spilled after being served , it doesn’t follow that third degree burns should also be expected.