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Failure to Warn:

California Court of Appeal Justice William Bedsworth reports:

[A] New Jersey jury awarded a local college student $179,001 because the manufacturer of a "loft bed" failed to warn users of the bed that if they fell out of it, they could hurt themselves....

I am presently staring -— incredulously -— at the opinion of the poor three-judge panel that had to confront this verdict. I tell you, people don't have any idea how hard appellate work is. Imagine having to explain all the things wrong with giving someone $179,001 because no one warned him against falling out of bed.

To begin with, the plaintiff was a college student.... If this is the level of cerebration accepted by New Jersey high schools, it hardly seems surprising that poor Princeton has to go begging to the other states for students....

Tragically, "There were no warning labels on the bed, and it had never 'cross[ed his] mind' or 'occurred to' plaintiff that he could fall or that the bed was dangerous in any way. He testified that had he seen a warning, he would have been 'aware of the hazard that was present' and slept closer to the wall, as he had done after the accident." Honest. Says so right in the opinion.

And he had an expert, George Widas, who testified that industry standards in the bed-making industry require that the manufacturer affix a warning "that says make sure that you protect yourself from this fall hazard." According to Widas, the warning label should have had "black letters on an orange background" and included a warning that both identified the hazard and explained how to avoid it.

So the label should have said -- in Day-Glo green letters on a phosphorescent-pink background -— "THIS IS A BED. USE ONLY WHILE AWAKE." Or perhaps "IF YOUR IQ IS NOT THIS TALL, YOU CANNOT RIDE ON THIS BED." Or how about an arrow pointing downward, with the legend "FALLING IN THIS DIRECTION COULD BE HAZARDOUS TO YOUR HEALTH. FALL ONLY UPWARD OR TO THE SIDE." ...

To their everlasting credit, the appellate panel did not just say, "What, are you crazy?" They spent 20 pages explaining the case and delineating the legal basis for their reversal of their trial court colleague. After an extremely patient and erudite explication of New Jersey law, they concluded, "The risks are so obvious here that we fail to see ... what a warning could have advised in addition to the obvious." Judgment reversed.

Note that the claim that the bed was defectively designed because it lacked a guardrail had been dismissed earlier, and the failure-to-warn claim is all that remained. The opinion is here; thanks to How Appealing for the pointer.

Crunchy Frog:
It is for morons like this that "Rock The Vote" was created. Not only do I not want this cretin anywhere near a voting booth, I want him to get a vasectomy at the earlist opportunity so that he does not further infect the gene pool.
10.3.2006 2:17am
Just John:
I write manuals for machines that do have strict safety rules, including placing labels on the machine indicating electrical and mechanical hazards. Most or all of the machines are over six feet tall, and not once have I ever seen or heard of a label being affixed to the top saying, "Please do not climb on top of the workstation and then fall asleep and roll off." There has got to be, as the appeals court says, some level of common sense naturally attributed to the user. If they had shown that the bed fell apart due to shoddy construction, or if they had made their argument about the guardrail, they might deserve a break, but as it is, no subsidizing stupidity.
10.3.2006 2:28am
Ilya Somin:
Well, I can sleep soundly again now that this verdict has been overruled. Or maybe not....
10.3.2006 2:40am
David M. Nieporent (www):
The right verdict was eventually reached, but think about how much money it cost to defend this case. Depositions, summary judgment, jury trial, and appeal.

Meanwhile, neither the plaintiff nor his attorney will be penalized for filing a frivolous suit. (Nor will the plaintiff or his expert be prosecuted for perjury -- anybody who claims that the risks of falling out of bed are not obvious is lying.)
10.3.2006 2:44am
J. L.:
I laughed so hard reading this my eyes watered!

I wonder how they came up with $179,001 in the first place. Did he require a bandaid or something that they tacked that extra buck on the end? Ha!
10.3.2006 2:46am
Lev:
He probably should have claimed it needed a seatbelt.
10.3.2006 3:08am
Brent (mail):
This is the kind of story that makes me want to become a lawyer, because the stupidity has an amorality that I can understand.
10.3.2006 3:20am
raj (mail):
I find the case silly as well, but to be fair to the trial court, it is probable that the case was tried to a jury, and trial judges are notoriously reluctant to set aside a jury verdict.

Also, what was the US$179,001 award for? I haven't read the opinions in the case, but that does seem like a strange figure. Was it US$1 for actual damages (it's not clear whether there were any actual injuries involved) and US$179,000 for punitive damages? If so, the trial court should have just denied the punitive damages portion of the award.
10.3.2006 5:39am
logicnazi (mail) (www):
No the trial court shouldn't have just denied the punitive damages portion. Even a $1 deciscion makes precedent.

There has to be more to this story. Was this tried in one of those areas that supposedly have an informal social norm of always giving money to the local guy when he goes up against a corp (I've heard it claimed that there are certain districts that essentially view jury awards as an extra source of income for their region).

Is there some reason that the manufacturer can't recover attorney's fees because he lost at the trial court?
10.3.2006 6:46am
stranger from a strange land far away (mail):
"one of those areas that supposedly have an informal social norm of always giving money to the local guy when he goes up against a corp"

Last week a jury in California awarded some $20 millions to a boy crippled in a motoring accident. Bizarrely, the one who's going to pony up those big bucks is not the driver who caused the damage but his employer, a corporation in Ohio, even though their employee was not driving on actual company business but going to see his dentist or physician while on a business trip to California.

Only in America you one can find such a preposterous, outlandish verdict.
10.3.2006 7:17am
TDPerkins (mail):
After the monumetal idiocy of the MacDonald's coffee verdict, why is anyone surprised?

Yours, TDP, ml, msl, &pfpp
10.3.2006 7:24am
TDPerkins (mail):
monumental /- monumental
10.3.2006 7:28am
TDPerkins (mail):
monumetal /- monumental

How long does it take this coffee stuff to work anyway?
10.3.2006 7:31am
Richard Aubrey (mail):
Had he won,his kid would have had to say, for the rest of his life, "Yes, I really am that stupid." Or, "I lied like a rug, got a sleazy lawyer, and paid for college."

Now, he gets to say,"Yes, I really am that stupid."
10.3.2006 8:03am
cld:
For those that don't know.

Bedsworth has a site that he places articles like this on and it is located here.
10.3.2006 8:48am
plunge (mail):
"After the monumetal idiocy of the MacDonald's coffee verdict, why is anyone surprised? "

I dunno, but the coffee case has always been a terrible example, in part because those that hold it up as a case of frivolous claims rarely if ever are honest about the actual facts of the case and the actual claims that were made about what McDonalds did wrong. Even if you still disagree with the verdict, presenting it as a simple case in which a dumb woman spilled coffee on herself and sued is basically lying via ommision.
10.3.2006 8:48am
Ted Frank (www):
Plunge, I know the facts of the McDonald's coffee case, and have read virtually everything ever written about it, have written quite a bit myself rebutting the urban legends the plaintiffs' bar have created about the case, and I think it's a simple case where a woman spilled coffee on herself. Before you get angry at me, please read what I've written on the subject.

As for the bed, Overlawyered covered this case and this opinion on August 16.
10.3.2006 8:58am
DavidBernstein (mail):
You never know with New Jersey courts. The New Jersey Supreme Court notoriously upheld a verdict against a swimming pool manufacturer for a teenager who broke into someone's yard, and dived into their pool (disputed whether he dived from the roof of the garage or from the edge of the pool) and wound up crippled due to an alleged "defect" in the pool, a "defect" the court acknowledged was the safest the pool could be. Essentially, all in ground pools were declared defective. The state legislature passed a law overruling this conclusion for the future. But when I teach products liability, and we see a weird decision, I always suggest my students first check to see whether it's (a) a California Supreme Court case from the Traynor years through the Rose Bird years; or (b) a NJ case.
10.3.2006 9:14am
plunge (mail):
"I think it's a simple case where a woman spilled coffee on herself. Before you get angry at me, please read what I've written on the subject. "

Like I said: lying via ommision. Saying that it is just a case about a woman suing for spilling it on herself is tantamount lying. End of story.

You can argue that the actual basis of the claim was wrong, as you do, but running around presenting a false basis is simply a way to poinson the well and does not reflect well on you or your honesty in presenting these issues. If I take your description of the case as a sign of your credibility, then why should I believe your argument is any more honest?
10.3.2006 9:30am
PersonFromPorlock:

To begin with, the plaintiff was a college student....

Justice Bedsworth's presumption of the intellectual competence of college students is about forty years out of date. The requirement for intelligence has been in decline ever since colleges discovered they're a growth industry.
10.3.2006 9:45am
TDPerkins (mail):
Plunge said:

"Like I said: lying via ommision. Saying that it is just a case about a woman suing for spilling it on herself is tantamount lying. End of story."

and

"You can argue that the actual basis of the claim was wrong, as you do, but running around presenting a false basis is simply a way to poinson the well..."


I think Plunge is lying or ignorant. The ANSI standard for brewing coffee is 195degF. Macdonald's brewed there's between 15 and 5 degrees cooler than that. There's was spilled by the victim onto themselves promptly and in such a situation, from a like cup, virtually any properly brewed coffee would have caused a serious burn. The burn was the victim's own fault.

There is no legally, ethically, or sensibly valid set of principles by which either that suit or this one can be defended.

The well should be "poisoned", as it is poisonous to society to entertain arguments to the contrary of concluding these two lawsuits are frivolous.

Yours, TDP, ml, msl, &pfpp
10.3.2006 9:51am
David Chesler (mail) (www):
I bought an HVAC instant-read thermometer ($5 to $10) and ordered black coffee at a few places. I've posted my exact results, but I found that one shop where subjectively the coffee was very hot, it was at 185 degrees, most other places about 165 degrees. And I did calibrate the thermometer with a pan of boilng water.

My kids aren't stupid -- is it OK if I remove the warning label that says "Do Not Remove", or the guard rails, from their bunk bed?
10.3.2006 10:14am
Mongoose388:
I thought the McDonals'd victim was an old invalid woman that was handed the scalding hot coffee by her daughter. If true I would blame the care giver for not looking out for the invalid.
10.3.2006 10:53am
Rex:
Before you get angry at me, please read what I've written on the subject.

I read your views on the subject, and I found them credible until you began characterizing the dispute as political.
10.3.2006 10:56am
Rich B. (mail):

Meanwhile, neither the plaintiff nor his attorney will be penalized for filing a frivolous suit. (Nor will the plaintiff or his expert be prosecuted for perjury -- anybody who claims that the risks of falling out of bed are not obvious is lying.)


I don't see how you can possibly say that the lawyer was not penalized! He put hundreds or thousands of hours into the case, and was not compensated at all for his time, because there is no recovery.

A portion of my workload is contingency-fee cases (or Plaintiffs' cases where there is a statutory attorney's fee award for winners), and I can tell you that there is a huge disincentive for taking a case like this, where there is a huge probability that you would be laughed out of court by the jury (or, if not, as in this case by either the trial or appellate judge).

Look, I have no problem with people busting trial lawyers by anecdote, a la Overlawyered. "Ha ha. Some guy got lots of money for being an idiot. Doesn't the system suck!"

But recognize that these bizarre verdicts will happen once or twice per state per year, maybe, and are balanced out by what are likely an equal number of People Who Were Honestly Injured Through Wrongdoing, But Couldn't Get Compensation.

But this isn't even an anecdote! Bed-boy ended up not getting any money! A lawyer who took lots of cases like this will soon be out of business.
10.3.2006 11:02am
Angus:

The ANSI standard for brewing coffee is 195degF. Macdonald's brewed there's between 15 and 5 degrees cooler than that.


There is a major difference between the temperature you brew coffee at, and the temperature at which you can safely serve it. Coffee served at 190F can burn away the skin within as little as two seconds, meaning it is patently unsafe to serve.

Had the coffee been served at a standard "serving" temperature (115F to 125F), there would have been nothing but some redness and irritation the skin. Instead, it was burned off down to the fat layer.
10.3.2006 11:06am
MnZ (mail):
$179,000 for falling out of bed? Are jury rewards simply a reflection of the ability of the defendant to pay?

Hmmm...perhaps I should get rid of my personal liability insurance.
10.3.2006 11:06am
...Max... (mail) (www):
>> Had the coffee been served at a standard "serving" temperature (115F to 125F) <<

On a summer day, the water from my garden hose is hotter than that (yes, yes -- Dallas, TX).

Coffee is a hot drink (so is tea -- but try arguing that here in the South). 115F is Frappucino gone bad.
10.3.2006 11:22am
TDPerkins (mail):
Angus, the distinction is made with no difference to the issue. Coffee is hot.

Coffee should be hot.

Don't spill it on yourself. If you do, it's your bad. In fact, it's your burn.

"Had the coffee been served at a standard "serving" temperature (115F to 125F)"



Wrong, standard serving temperatures are anywhere from 165 to 195--freshly brewed.

115F is tepid and would make for disgusting coffee.

Of course, the issue made for a disgusting lawsuit.

Yours, TDP, ml, msl, &pfpp
10.3.2006 11:24am
Russ Meyer (mail):
This case is one of the most obvious I have yet seen that argues the need for tort reform. Not only should punitive damages be limited, as well as the plaintiffs who file these frivilous things be forced to pay all associated costs, but someone who wastes our time and resources with something so obviously stupid should be fined as well.

And I think that the argument that such will dissuade people from filing legitimate lawsuits is bogus. The difference between someone getting hurt by an honestly defective machine and someone who is an idiot seems obvious to all people who aren't either lawyers or greedy.
10.3.2006 11:33am
Rex:
This case is one of the most obvious I have yet seen that argues the need for tort reform.

Did you read the post? The New Jersey case was reversed on appeal.
10.3.2006 11:37am
Ben4343434:
I don't see how you can possibly say that the lawyer was not penalized! He put hundreds or thousands of hours into the case, and was not compensated at all for his time, because there is no recovery.


That's not a penalty - it's just a fact of life when you take cases on a contingency basis (i.e. plaintiff's cases). You're not going to win every case you take.

Part of being a good plaintiffs' lawyer is knowing which cases to take and which cases not to take. A case where a college student walks into your office and wants to sue the pants off everybody because he fell off his bunk bed would be an example of a case not to take.
10.3.2006 11:42am
Seamus (mail):
Had the coffee been served at a standard "serving" temperature (115F to 125F), there would have been nothing but some redness and irritation the skin.

Is this a joke? If the coffee had regularly been served at 115-125 degrees F, any self-respecting coffee drinker would have taken his or her business elsewhere. Coffee is supposed to be brewed at just below boiling. Black tea, moreover, should be brewed *at* boiling.

Saying that this woman should have been recovered one red cent is tantamount to saying that coffee and black tea is, when properly prepared, inherently too dangerous to be sold to the public.
10.3.2006 12:08pm
leftyposter:
Eugene is an expert on New Jersey tort law? He must be, since he never posts on a legal topic unless he's an expert. Who kew?
10.3.2006 12:08pm
rvman (mail):
>>This case is one of the most obvious I have yet seen that
>>argues the need for tort reform.

>Did you read the post? The New Jersey case was reversed on
>appeal.

After the bed company spent who-knows how much on legal fees, the government spent who-knows how much on court costs, all because some adult fell out of bed and found a lawyer too sleazy to just tell him "Your fault, go home," and instead said something to the effect of "If you sue him in Xtown, NJ, I can almost guarantee we will win." That lawyer, and that client, should pay the bed company and government costs, and the lawyer should be facing bar penalties.

And the judge who made this ruling should be kicked off the bench and disbarred as an obvious incompetent, but that will never happen, tort reform or no. Government officials are generally sacrosanct, in practice if not in law.
10.3.2006 12:16pm
Colin (mail):
You know, I want to see the VC authors condemn the recent detention legislation too. But the constant, off topic demands that they do so immediately are getting old. None of these authors are going to cave to demands from the peanut gallery.
10.3.2006 12:18pm
GMUSL 3L (mail):
Pot, Kettle; Kettle, meet pot.

California and New Jersey are the two states with the most abysmally wretched tort law, based on the theory that some idiot got hurt, so why should said idiot have to pay when there's a nice rich corporation who gave said idiot the means to hurt himself?

Thankfully, both the appellate judges in California and New Jersey appear to have SOME limits as to the levels of idiocy that they will endorse.
10.3.2006 12:25pm
keypusher (mail):
"I think it's a simple case where a woman spilled coffee on

herself. Before you get angry at me, please read what I've written on the subject. "

Like I said: lying via ommision. Saying that it is just a case about a woman suing for spilling it on herself is tantamount lying. End of story.

You can argue that the actual basis of the claim was wrong, as you do, but running around presenting a false basis is simply a way to poinson the well and does not reflect well on you or your honesty in presenting these issues. If I take your description of the case as a sign of your credibility, then why should I believe your argument is any more honest?


Yo, plunge, he was giving a one-sentence description of what he thinks the case is about. Why don't you read his full account before you decide whether he is presenting the case honestly or not? You never know, you might learn something.
10.3.2006 12:25pm
Steve:
The coffee case is hardly the poster for frivolous lawsuits. Maybe THIS case should be the poster. There are good arguments on both sides of the coffee case, and IMO, it was properly presented to a jury, notwithstanding commentors who believe they are the ultimate authority on how hot coffee should be served.

Those who think the case under discussion makes a compelling case for tort reform exemplify the unseriousness of most tort reform advocates; because one judge did a stupid thing by not granting summary judgment, the argument goes, we should adopt some sort of sweeping reform that would apply to all cases.

There are many people who honestly want to improve the legal system. Those who devote substantial time and effort to tort reform, unfortunately, tend to fall more into the category of pure pro-business advocates, trying to disguise their policy preferences as heartfelt concern for the fairness of the legal system. You really can't miss this phenomenon if you pay attention.
10.3.2006 12:25pm
save_the _rustbelt (mail):
The last time I bought a 5 step American-made wooden stepladdder it had 7 idiot labels.

"Don't stand on the paint tray."

"Don't lean this on electrical lines."

etc.

The benefits of litigation.

But since we no longer make step ladders I guess the labels may be in Chinese now.
10.3.2006 12:27pm
Steve:
That's not a penalty - it's just a fact of life when you take cases on a contingency basis (i.e. plaintiff's cases). You're not going to win every case you take.

Part of being a good plaintiffs' lawyer is knowing which cases to take and which cases not to take. A case where a college student walks into your office and wants to sue the pants off everybody because he fell off his bunk bed would be an example of a case not to take.


I don't get it. You seem to fully understand the harm the plaintiff's lawyer suffered, but it's like you totally discount it as a harm because it's what he deserved.

The point - as you say yourself - is that any lawyer who wastes his time taking cases like this one will soon be out on the street. The free market incentivizes him to accept only meritorious lawsuits. Now, of course, this is hardly the most efficient way of doing things - but we accept serious market inefficiencies in virtually every other walk of life. Consider how many free-market arguments take the form "companies should be free to do X - if they keep doing it, they'll go bankrupt, and another company will come along that won't do X." Somehow, only in the legal profession is the free market not an acceptable answer.
10.3.2006 12:32pm
Jake (Guest):

Consider how many free-market arguments take the form "companies should be free to do X - if they keep doing it, they'll go bankrupt, and another company will come along that won't do X." Somehow, only in the legal profession is the free market not an acceptable answer.

I think the big difference here is that only in the legal profession can you inflict tremendous costs on other companies without producing anything worthwhile. Essentially, all of the money the bed manufacturer had to spend on attorney's fees was pure social waste.

I agree that tort reform is a complicated topic not susceptible to an easy solution, but I don't think it's a crazy (or anti-free market) impulse to want to reduce legal costs for innocent companies.
10.3.2006 12:37pm
Perry Dane:
I have no view of the ultimate merits of this case.

But... to the fair: Yes, the idiot plaintiff said on the stand that it didn't cross his mind that the bed might be dangerous. But his lawyers' legal claim, as I understand it, was a little more subtle than has been suggested. They conceded, as they had to, that any reasonable person would, in principle, realize that falling out of a loft bed could be dangerous. But, they argued, persons who are sleeping or suddenly aroused might not, while in that unconscious or semi-conscious state, fully appreciate the danger. Their expert then testified that a prominent warning could, in effect, prime a person to behave more carefully even when not fully awake. This is, I think, a reasonable empirical claim. It might be wrong, but it is reasonable. And to say that the danger of falling out of a loft bed is obvious to anyone who's fully awake just avoids the real issue. Indeed, the court's use of the "obvious danger" doctrine to reject the failure-to-warn cause of action strikes me as being, under the circumstances, overly mechanical and obvlivious to the real issue.

The expert also said that even persons who are awake might not fully appreciate the need to take advance precautions in a loft bed -- i.e., to do something specific while still awake that will reduce their chance of falling out of bed when asleep. This also strikes me as reasonable. Most of us, I think, do just assume that our sleeping selves will know enough not to roll out of bed. Indeed, most of the time our sleeping selves are remarkably good at not rolling out of bed.

It is another question, of course, whether the expert's reasonable empirical claims are actually true. I would want more testimony from, say, psychologists in the field, and not just a safety engineer.

There's also an interesting legal issue here to which the court alludes: On the one hand, including a warning, if effective, is a relatively cheap way of reducing the riks of a loft bed, or any product. On the other hand, if every potentially dangerous product had a warning, the effectiveness of all such warnings would be diluted because of their very ubiquity. In effect, it means that every warning, however effective in reducing injuries in a particular context, also creates a negative externality in that it reduces the effectiveness of all warnings. This adds a really fascinating dynamic quality, or feedback loop, to the usual Learned Hand test. I suppose that some tort scholars must have written about this (perhaps even come up with a nifty economic model). If not, they should.
10.3.2006 12:54pm
Ben4343434:
I don't discount it as a harm. I discount it as a penalty. A penalty is distinct from a harm suffered.
10.3.2006 12:55pm
Fub:
TDPerkins srote:
How long does it take this coffee stuff to work anyway?
Gauging from the subject drift these comments have undergone, not long.
10.3.2006 12:55pm
HLSbertarian (mail):
Perry: Sadly, you're right that this claim isn't completely ridiculous under New jersey tort law. Oh where have you gone, assumption of risk.
10.3.2006 12:59pm
TDPerkins (mail):
Their expert then testified that a prominent warning could, in effect, prime a person to behave more carefully even when not fully awake. This is, I think, a reasonable empirical claim. It might be wrong, but it is reasonable.


That's just the point. It isn't reasonable.

If being about two yards off the ground doesn't prime you, higher functions like reading aren't going to help.

Yours, TDP, ml, msl, &pfpp
10.3.2006 12:59pm
new lawyer (mail):
Regarding the McDonald's case:
If my memory serves me correctly, the woman was hospitalized for over a week with third degree burns. At trial, the chief coffee engineer for McDonalds testified that they kept the coffee that hot so that it would still be hot when construction workers got to their worksights 20-25 minutes later. He also testified that the company knew that serving coffee this hot would result in about 700 serious burns per year, and had in fact been paying damage claims for a number of years as a result, but that this was simply one of the costs of capturing market share. In interviews after trial, jurors said they were appalled that McDonalds was so calculating, i.e., willing to say "By burning 700 people per year, our bottom line will increase, so let's do it." As a result, they awarded the victim $4 million, which was McDonald's coffee profits (or sales, I don't remember) for 1 year.

The trial judge cut the verdict in half, which was then further reduced on appeal. In the end, the plaintiff did not even get enough to cover her medical bills from the incident.
10.3.2006 1:00pm
TDPerkins (mail):

Gauging from the subject drift these comments have undergone, not long.


I got up at 4:15 to run too. Is suspect the sugar hadn't helped yet either.

Yours, TDP, ml, msl, &pfpp
10.3.2006 1:04pm
Steve:
They conceded, as they had to, that any reasonable person would, in principle, realize that falling out of a loft bed could be dangerous. But, they argued, persons who are sleeping or suddenly aroused might not, while in that unconscious or semi-conscious state, fully appreciate the danger. Their expert then testified that a prominent warning could, in effect, prime a person to behave more carefully even when not fully awake. This is, I think, a reasonable empirical claim. It might be wrong, but it is reasonable.

Look, I'm the anti-tort reform guy, and even I don't think this is a theory that should survive summary judgment. If this is reasonable, then anything is reasonable. I mean that quite literally - ANY warning whatsoever might, in theory, subconsciously prepare you to better deal with a contingency down the road. But that doesn't mean every single case gets to a jury on a failure to warn theory.
10.3.2006 1:04pm
TDPerkins (mail):
In interviews after trial, jurors said they were appalled that McDonalds was so calculating, i.e., willing to say "By burning 700 people per year, our bottom line will increase, so let's do it."


Which amounts to the jury saying no one should sell hot beverages. Such calculations are always a part of humanity doing anything. The "appalling" factor doesn't change if there were 1, 7, or 7,000. Coffee is and should be a hot beverage, if you decide to buy it, don't spill it on yourself.

In the end, the plaintiff did not even get enough to cover her medical bills from the incident.


At least justice was to some vague degree served.

Yours, TDP, ml, msl, &pfpp
10.3.2006 1:12pm
Leland (mail):
I agree with those who point out the flaws of the McDonald's coffee lawsuit as a shining example of bad tort. I always keep in mind the $4.9 billion verdict LA handed against GM for building a car in which 6 people survived a 70 mph differential impact in the rear by a drunk driver, but unfortunately got burned in the process. I know burns are a horrible form of pain, but the logic that derived that GM should be held accountable, and to the tune of $4.7 billion, was itself tortured.
10.3.2006 1:18pm
Bryan DB:
The fact that you folks are debating so "hotly" over the serving temperature of coffee is prima facie evidence that the suit was not frivolous.
10.3.2006 1:18pm
TDPerkins (mail):
The fact that you folks are debating so "hotly" over the serving temperature of coffee is prima facie evidence that the suit was not frivolous.


No, it's evidence of how deeply the "big business is evil" mindset has implanted itself in the public mind. The idea that coffee should be served cold is frivolous in itself, neither is the chemistry of coffee brewing open to much productive debate.

The idea that businesses should make calculations towards other goals than to make money while serving their customers needs is a frivolous one, that it is debated does not make it less so.

The dismal thing about the dismal science is that most of it's truths have been known for centuries, and that none suuport the idea that any person but this woman are responsible for her own injury.

And yet there are still Marxists/Keynesians, and even Krugmans--what frivolity.

Yours, TDP, ml, msl, &pfpp
10.3.2006 1:27pm
CJColucci:
No one seems to have picked up on the author's citation to Wile E. Coyote. WEC has proved to all of us that gravity does not work until you're aware of your situation. The plaintiff was in a groggy, semi-conscious state. He could not have been aware of his situation. Therefore, he would have had no reason to expect to fall.
10.3.2006 1:44pm
Richard Aubrey (mail):
Gravity has been with us for some time, I believe.

We have evolved both fear of heights and a reflexive response to unexpected falling.

We have fallen off bicycles, chairs, porches, ladders, and fallen down stairs. We have tripped over uneven sidewalks. We generally then hit the ground.

It is simply a lie for a competent human being to say he was unaware of the dangers. Besides, it isn't the special nature of the bunk bed that is the real issue, nor even the fall. It's the sudden stop at the end. And that's been the same since the kid was learning to walk. If you're up, you could go down. And it doesn't matter how you got up, or why, or what aspect of the physical world is holding you up. You could go down.

If I were involved, I'd see if I could prosecute the kid for perjury. He claimed something that is, in fact, false. Presumably under oath.
10.3.2006 1:48pm
Monkberrymoon (mail):
Look, I'm as pro tort-reform as the next guy (within limits), but you pro-mcDonald's people are getting silly. The choice is not between near-boiling and cold coffee -- the choice was between near-boiling coffee that could cause third degree burns and coffee that wasn't quite as hot. The temperature at which coffee is brewed is irrelevant. The issue is serving temperature. McD's chose (for whatever reason and despite knowledge of the problems it causes) to serve coffee at near-boiling temperatures when it didn't have to.

That doesn't mean necessarily that they're evil and deserve to be punished. But it certainly seems like an issue that should go to the jury (unlike this bed case).
10.3.2006 2:01pm
JerryW (mail):
As a non-attorney I have favored a simple loser pays court costs/attorney fees, with a nominal $1 award as constituting a tie, as a relatively simple partial solution to the problem of "frivolous" law suits.

What do the experts think of this?
10.3.2006 2:14pm
TDPerkins (mail):
Monkberrymoon, properly brweed coffee is near boiling. Served properly hot it is within 30 degrees or so of boiling at minimum.

That is more than hot enough to cause severe burns, and it is common knowledge.

The McDonald's coffee lawsuit was a tragi-comedy where the process of law lost otherwise due respect on account of the courts not finding a way to quash that ridiculous suit.

Yours, TDP, ml, msl, &pfpp
10.3.2006 2:18pm
TDPerkins (mail):

In fact monkeyberrymoon, I'm sure the fact that lady won her hot coffee suit encouraged this idiot and his uncrupulous lawyer to file their suit.

Yours, TDP, ml, msl, &pfpp
10.3.2006 2:20pm
Mahlon:
WARNING: GRAVITY!! IT'S NOT JUST A THEORY - IT'S A LAW!

Actually, the McDonalds coffee case was a far more grounded in fact and reason. A reasonable person would expect to get burned if they spilled the coffee, but would that person expect to get burned as badly as the old lady did because of extreme temperature. I really don't have a problem with that case.

In this case, a reasonable person can ONLY expect that gravity will take over and it might hurt when you hit. The bed manufacturer did nothing the increase the effect of gravity or cluttering the floor near the bed making the landing more painful. There is a marked difference in the cases.
10.3.2006 2:21pm
TDPerkins (mail):
but would that person expect to get burned as badly as the old lady did because of extreme temperature.


If I sat in it for any length of time, as the self-chosen circumstances the lady spilled the coffee under dictated, yes. The temperature was not extreme for fresh coffee.

Yours, TDP, ml, msl, &pfpp
10.3.2006 2:26pm
HLSbertarian (mail):

But when I teach products liability, and we see a weird decision, I always suggest my students first check to see whether it's (a) a California Supreme Court case from the Traynor years through the Rose Bird years; or (b) a NJ case.


When I'm reading a case and start incredulously shaking my head a couple of pages in at the lack of any sense, I always turn back to the headnote, and 75% of the time it's either Traynor or the NJ Supremes. I think I noticed this a couple of months into my 1L year, and have learned to largely ignore them. I'm assured by many that these cases are often outliers, and that other states are much more sensible, but these days I'm not so sure.
10.3.2006 2:27pm
Fred the Fourth (mail):
Regarding Perry Dane's comment about excessive warning labels:
- Some studies of aircraft cockpit warning systems have shown that multiple "safety" warnings have actually been contributing factors in crashes.
- In California, so-called "Prop.65" warning labels (...this location contains chemicals known to the State to be cancer-causing...) can now be seen as window-stickers on new cars at your local dealership. Previously, I had only noticed them at bars, restaurants, laundromats, dry-cleaners, parking garages, swimming pools, gas stations, etc. etc. ad nauseum. They are background clutter now, except briefly when you see one in YET ANOTHER SILLY LOCATION. (Of course, I'm sure the people paid to figure out who shall next be required to post the P.65 warning are happy.)
10.3.2006 2:45pm
Angus:
The temperature was not extreme for fresh coffee.

If the coffee can burn all the layers of skin off a person down to the fat underneath in as little as two seconds of exposure, then the jury ruled that the temperature was too extreme. This wasn't just a few blisters. The woman needed skin grafts.
10.3.2006 3:20pm
TDPerkins (mail):
If the coffee can burn all the layers of skin off a person down to the fat underneath in as little as two seconds of exposure, then the jury ruled that the temperature was too extreme. This wasn't just a few blisters. The woman needed skin grafts.


Which is what happens if you sit in a pool of fresh hot coffee for several seconds when age has substantially thinned your skin.

It's not like she got a little on her lap and the stood up and held the hot cloth away from her. Essentially, she held a pool of it between her legs.

My sincere sympathy for her mishap does not mean it was not her mishap.

Yours, TDP, ml, msl, &pfpp
10.3.2006 3:47pm
BobDoyle (mail):
I guess we should make pizza shops serve their pies cooler too, since as anyone who's ever eaten freshly served pizza has discovered sometime along the way, the roof of the mouth is easily burned. Now imagine how much it might burn if someone in short-shorts put a hot slice of pizza on his/her lap while driving away from the store and it slipped between his/her bare legs off the paper plate on his/her lap. Oooooh! That would HURT! I think that every pizza shop should be required to put warning labels on their pizzas saying: "CAREFUL, This Pizza is served HOT! Do NOT rest the pizza on your lap while you are driving as you may severely burn your thighs!"

What do ya think?

I think consumers WANT their pizzas, coffees, etc. served HOT and, in general, would not support merchandisers who sold tepid coffee or warm pizza, etc. because of a paternalistic notion that they had to protect the consuming public from their own folly. If some people do not understand that coffee and pizza are served hot and can burn them, or that falling from a height, say from a bunk bed, can injure, can injure them, perhaps they should be the recipients of Darwin awards.

By the way, why should the bunk-bed manufacturer be held liable rather than the building contractor, since it was not the fall from the bunk bed, but rather the collision with the FLOOR, that caused the injury?
10.3.2006 3:54pm
Ming the Merciless Siamese Cat (mail):
Is there some reason that the manufacturer can't recover attorney's fees because he lost at the trial court?


Yes, the reason is that, under the US system, the winner of a lawsuit generally cannot recover his legal costs from the loser.

You sue me. I spend $100,000 defending myself and win. I'm out $100,000.
10.3.2006 4:19pm
josh:
Ted Frank

I read the "quite a bit" of material you have on the McDonald's case, and you fail to address the very valid point brought up by New Lawyer, which is that the jury sustained large punitive damages because of the bean-counting done by McDonald's to accept known injuries in the face of higher sales. The dispute over McDonald's coffee temperature versus others' is irrelevant to whether they knowingly accepted risk in this fashion.

Reasonable minds most likely will not disagree on the plaintiff's understanding of the risk in the bed case, assuming correct the facts as written in this post. Reasonable minds can disagree as to the consumer's understanding of the risk of scalding coffee and whether that triggers a duty to warn. With the facts as written in this post, we know the danger of falling out of bed. While most people know they will be burned by hot coffee, I defy anyone who has not been aware of the McDonald's case intimately to accurately describe the harm. If one were to conduct a poll, most respondents likely would say they would be burned. But to what degree?

Your response as to the injured woman's pants and time stewing in the coffee (no pun intended) goes to contributory negligence and not (depending on the jurisdiction) to the entire removal of a duty to warn.

TDPerkins comments (IE, "There is no legally, ethically, or sensibly valid set of principles by which either that suit or this one can be defended.") likewise focus entirely on this comparison of temperature, rather than the cost-benefit analysis done by the company and the comparable knowledge of risk by the company and consumers. The rest of TD Perkins' comments are so filled with invective as to not warrant comment.
10.3.2006 4:23pm
josh:
BobDoyle

"I think consumers WANT their pizzas, coffees, etc. served HOT and, in general, would not support merchandisers who sold tepid coffee or warm pizza, etc. because of a paternalistic notion that they had to protect the consuming public from their own folly."

This entirely misses the point of these disputes. No one disputes what consumers wants, or seeks to deny them that in the free market. These disputes simply turn on whether the vendor has a duty to warn. Using the bed case in this post as anecdotal evidence of the entire tors system is a little unfair. These cases are, and must be, decided on a case-by-case basis.

The McDonald's case, on the other hand, simply turned on two facts: (1) despite the defense protestation that "people understand the harm," in reality, they don't. There is a world of difference between knowing that spilling boiling coffee on myself will hurt, burn, scald or be the equivalent of dipping my arm in nuclear waste. Tepending on temperatures and manner of spill, these varying injuries must play out before a jury. (2) the jury heard the fact and decided accordingly that McDonald's knowingly chose to maintain its temperatures despite regular injuries.

You are correct that consumers WANT various products hot. But to say that consumers have placed a value on exact temperatures is not accurate. Moreover, even if they have, that still doesn't mean they have been given full information as to the dangers presented from their choice. They have not been told that at XXX degree, coffee will burn YYY amount. If they were, their heat choices might change. In the end, the courts and the market have reached the perfect conclusion by (a) allowing consumers to have their coffee as hot as they want as long as (b) the vendor takes the appropriate measure to warn of the corresponding harm.
10.3.2006 4:31pm
Steve:
Every company does cost-benefit analyses, of course. Let's say a company does such an analysis and concludes, gee, if we forego this safety precaution then 100 people will be injured, and it's cheaper to pay all of them off than to implement the safety precaution. So naturally they don't do it.

There are two schools of thought. One says, ok, that decision was all well and good, but now the tort system is going to make you pay those 100 people, just like you planned on. The other says, hang on, this company made the rational economic decision - the cost of the 100 injuries is less than the cost of implementing the safety measure - and therefore we shouldn't punish them for making the most efficient choice.

It's kind of a theoretical debate, but both sides have their adherents, and it's kind of silly to pretend that there's only one real answer.
10.3.2006 4:36pm
TDPerkins (mail):
Josh's dismissal of the facts of the case which led to the unusual degree of injury the coffee case plaintiff suffered--the need for skingrafts--renders his opinion nugatory.

What caused the degree of her injury was not that the coffee was uncommonly hot--it was as hot as fresh coffee commonly should be--but that she was unable to extricate/remove herself from the pool of hot coffee in which she sat.

That a cost-benefit analysis was done in a formal fashion is irrelevant--it is what must always be done in any human activity, whether in formal fashion or not.

Most people are aware that if they hold themselves in contact with an substance that is within a few tens of degrees of boiling, their flesh will be destroyed. Coffee should be brewed and served at this range of temperatures.

Hence, spilling coffee on yourself and sitting in it is not a good idea.

The invective is quite warranted, as we are far past the point where a restatement of truths should be merely uttered calmly. At this rate, within a generation, it will have to be shouted with cannon mouths and not keyboards.

Yours, TDP, ml, msl, &pfpp
10.3.2006 4:38pm
DeezRightWingNutz:
Is one able to drink coffee at the "appropriate" serving temperature? If not, why is it the appropriate serving temperature? I'm not arguing that an entity should have product liability exposure for putting out coffee that's too hot to drink, but I'm dubious of everyone's claims about the proper serving temperatue being hot enough to cause third degree burns. Maybe I'm a wuss, but I can rarely drink coffee unless it sits for five minutes. Good for the construction worker, bad for me.

Secondly, I don't see what the brewing temperature has to do with serving temperature. Steel is forged at pretty high temperatures. If I touch a golf club offered for sale served fresh off the line and it burns me, is it just tough noogies?

Lastly, was there anything in the McDonald's case about the cup being defective. I've had the bottom fall out of a paper coffee cup. Thankfully, it didn't land on my lap, and the coffee was 15 minutes old. If it had landed on my lap and caused burns, I might at least ask for free coffee for life.
10.3.2006 4:54pm
TDPerkins (mail):
Steve wrote:

It's kind of a theoretical debate, but both sides have their adherents, and it's kind of silly to pretend that there's only one real answer.


As I mentioned, there are still adherents to theories of economics which are known to be invalid descriptions of the valuations of human activity.

This does not mean the other theories are right in part, it means they are wrong.

Likewise here, there is a correct interpretation and other incorrect interpretations.

It is a certainty that a finite number of people will injure themselves falling from apparatus dedicated to facilitating sleep. It is a certainty that this number can be calculated to a known degree of certainty. It is likely that the common public in this case does not know what that number is.

In no way can this be said to create a liablity for the harm suffered from such injuries on the part of entities selling such beds.

Even if they don't know how many injuries that is, the common public knows they don't want to hit the ground from 5 or 6 feet up. If they don't know that, I submit a warning label is superfluous.

Yours, TDP, ml, msl, &pfpp
10.3.2006 5:04pm
Steve:
I wish you hadn't quoted my words as part of your post, as your post was completely nonresponsive to anything I wrote.
10.3.2006 5:11pm
josh:
TP Perkins:

"Josh's dismissal of the facts of the case which led to the unusual degree of injury the coffee case plaintiff suffered--the need for skingrafts--renders his opinion nugatory." Looks, there's really no point here, but you don't argue facts in your comments. Your make argument. I haven't dismissed any facts of the case. You confuse the notion that the plaintiff "was unable to extricate/remove herself from the pool of hot coffee in which she sat" (potential contributory negligence, though not sure how) with knowledge of risk and duty to warn.

It's fine if you don't want to address the jury finding and subsequent academia on the case -- much of which recognizes a duty to want when a plaintiff's knowledge of the degree of harm differs. Even your own comments here belie that point (See "There's was spilled by the victim onto themselves promptly and in such a situation, from a like cup, virtually any properly brewed coffee would have caused a serious burn.")

Not all consumers who consciously choose boiling coffee know "a serious burn" equals skin grafts. The same can be said whether they douse two drops on themselves, pour it over their heads or have it soak in their laps for several minutes. In fact, I would argue the last point is counterintuitive because it would be reasonable to expect the harm to go down as it sits in one's lap, not increase.

You're obviously very angry about this. Perhaps a little less coffee might cool you down.
10.3.2006 5:18pm
TDPerkins (mail):
Steve complained:

I wish you hadn't quoted my words as part of your post, as your post was completely nonresponsive to anything I wrote.


I quoted a sentence from your post, commenting and expounding about the innacuracy of the sentence.

Unintended insult is regrettable.

So is inaccuracy.

My post clearly spoke to give my view that your post was irrelevant, because it is innacurate to write "it's kind of silly to pretend that there's only one real answer".

It silly to pretend there's more than one.

Yours, TDP, ml, msl, &pfpp
10.3.2006 5:29pm
Plato:
Voltaire:

"I was never ruined but twice in my life: once, when I lost a lawsuit, and once when I won one."
10.3.2006 5:41pm
Steve:
My post clearly spoke to give my view that your post was irrelevant, because it is innacurate to write "it's kind of silly to pretend that there's only one real answer".

I didn't make some generic assertion that there is always more than one answer. I made a very specific statement regarding two specific economic arguments, both of which have their merits. If you want to respond to what I actually wrote, be my guest.
10.3.2006 5:43pm
TDPerkins (mail):
Not all consumers who consciously choose boiling coffee know "a serious burn" equals skin grafts.


No one choses boiling coffee to drink, Josh. They generally, knowingly and willfully, choose steaming HOT coffee. And blow on it and sometimes slurp the first several sips. The fact they may not know they may need skin grafts if they sit in it is irrelevant in light of the fact they know they don't want to wear it because they know it will hurt. And that is generally known.

You confuse the notion that the plaintiff "was unable to extricate/remove herself from the pool of hot coffee in which she sat" (potential contributory negligence, though not sure how) with knowledge of risk and [sic]lack of ?[/sic]duty to warn.


Unless you are prepared with facts to argue that the consumption of coffee is a novelty of which the public has little or no common knowledge, and also that the consumption of steaming heated beverages is a novelty which was just being introduced to the public at the time of the accident; or unless you are prepared to argue that the public awareness of the danger of heated beverages is such that the public thinks that spills are not possibly of any serious consequence; or unless you are able to argue that coffee is unusually hot if served at 185 degrees (the upper end of normal and not unusual); then you have no argument to the effect the McDonald's customer was due any particular warning--the fact they had calculated or observed that 700 people would be burned is irrelevant.

"You're obviously very angry about this. Perhaps a little less coffee might cool you down."


Actually Josh I'm not angry at all.

I'm correct and adamant.

Yours, TDP, ml, msl, &pfpp
10.3.2006 5:48pm
TDPerkins (mail):
I didn't make some generic assertion that there is always more than one answer. I made a very specific statement regarding two specific economic arguments, both of which have their merits. If you want to respond to what I actually wrote, be my guest.


Steve I have responded to your assertion that each argument has merits by writing that one the arguments in fact would only have merit in circumstances that are not obtained--hence that argument has no merits.

The fact it has adherents, which you stated, is not a "merit".

Yours, TDP, ml, msl, &pfpp
10.3.2006 5:51pm
SKlein:
this is the single most tedious comment thread in the history of this blog.
10.3.2006 5:55pm
new lawyer (mail):
TDPerkins said -


As I mentioned, there are still adherents to theories of economics which are known to be invalid descriptions of the valuations of human activity.

This does not mean the other theories are right in part, it means they are wrong.

Likewise here, there is a correct interpretation and other incorrect interpretations.


It seems to me that Josh is comparing Caldor-Hicks (sp?) to Paretto (again, sp?) efficiency in the sense that the former views a move as efficient as long as the winners compensate the losers, but doesn't actually require them to do so, whereas the latter does expect that the winners compensate the losers. As far as I know, neither is "wrong" - CH efficiency cares not at all about distribution while Paretto optimality does.

As a matter of fairness, doesn't it seem reasonable that if McDonalds is going to make a decision to serve scalding hot coffee based on the fact that it is more profitable for the company to pay burned people than to serve coffee less hot, they should be required to actually make the payments that their cost-benefit analysis contemplated? After all, McDonalds does the cost-benefit analysis, not the burn victims. Of course, the burnees did in fact spill coffee on themselves, but that is always true. The factory workers of The Jungle fame who fell into vats of boiling food fell all by themselves - the company did not make them fall. But it also didn't install railings, knowing full well that some subset of workers would fall in and die. Likewise, McDonalds knew that some subset of coffee-drinkers would get burned by spilling coffee on themselves.

McDonalds decision is not evil - as has been pointed out, companies make such decisions every day. But evil or not, shouldn't McDonalds internalize the externalities it chose to create? McDonalds itself seemed to think so, and settled many cases quickly and quietly before this one came down the pipeline.
10.3.2006 6:00pm
TDPerkins (mail):
SKlein, you should look at the original thread about the McDonald's coffee case. The only thing this thread has going for it is that it's partly a retread...the other thread was like 160 posts long I think.

I think that one wins hands down.

Yours, TDP, ml, msl, &pfpp
10.3.2006 6:01pm
TDPerkins (mail):
As far as I know, neither is "wrong" - CH efficiency cares not at all about distribution while Paretto optimality does.


Theories alone are contextless, and can't be said to be valid until tried in a context. In this and any real world context but the one I mentioned, I cannot imagine the imposition of such penalties to be just.

But evil or not, shouldn't McDonalds internalize the externalities it chose to create?


To the degree it internalized them only because they perceived a greater negative arising from from runaway juries than by settling meritless cases, they were not "deciding" absent incipient coercion to internalize the cost--also, many if not all of those settled cases arose from McDonald's employees doing the spilling; not the customer injuring themselves.

"After all, McDonalds does the cost-benefit analysis, not the burn victims."



You are quite incorrect. The customer does perform a cost benefit analysis. They decided of their own free will to purchase the coffee, based on life experience if not actuarial tables (or what have you). To show McDonald's was "unfair" you would have to show their coffee was hotter than you could expect to be encounter or have heard of in common life experience, and it was not so.

"The factory workers of The Jungle fame who fell into vats of boiling food fell all by themselves - the company did not make them fall. But it also didn't install railings, knowing full well that some subset of workers would fall in and die."


And the workers also knew they might fall, yet they chose to work there.

Yours, TDP, ml, msl, &pfpp
10.3.2006 6:35pm
CJColucci:
this is the single most tedious comment thread in the history of this blog.
You're overlooking all the Dixie Chick threads and the threads about whether certain bad jokes about Bush are "fair."
But there's no accounting for taste.
10.3.2006 6:37pm
Steve:
Thanks, new lawyer, for remembering the labels which I long ago forgot for these economic theories.

TDP quite obviously has all the answers, and has wrapped up all the problems of both law and economics in a nice little bow.

Never mind that the theories I articulated don't even apply to failure to warn cases - you go, girl! Keep it up with the superiority complex and pretentious turns of phrase, you're surely impressing a lot of people.
10.3.2006 7:12pm
josh:
TDPerkins:

"The fact they may not know they may need skin grafts if they sit in it is irrelevant in light of the fact they know they don't want to wear it because they know it will hurt. And that is generally known."

Aagain, oh angry one, you acknowledge the difference between the knowledge of harm of needing skin grafts versus the knowledge that "it will hurt." Tort law 101 holds that the tortfeasor must act reasonably in light of the foreseeable circumstances. The duty to warn (to act reasonable) for a business serving consumers (invitee) changes with the varying risks.

You plainly didn't even understand new lawyer's comment of internalizing costs [can't you tone down the rhetoric and advance meaningful discussion -- "runaway juries," "incipient coercion." Who are you, Tucker Carlson on Crossfire?] You say "To the degree it internalized them only because they perceived a greater negative arising from from runaway juries than by settling meritless cases, they were not "deciding" absent incipient coercion to internalize the cost." That is not the cost-benefit analysis at issue in deciding whether to serve coffee at a particular temperature. That's a cost benefit-analysis for deciding whether to settle a case (setting aside your unsupported rhetoric of the merit of all of a multi-billion dollar company's tort suits).

Repeating the argument that "everyone knows coffee burns" in ever-more frenzied ways doesn't address the lack of knowledge of various potential harms of skin grafts versus scalding. Adding [sic] to your rebuttals does little to further your argument.

Take a deep breath and try to answer those simple points (actually best made by new lawyer. He must have gone to U of Chicago).
10.3.2006 7:18pm
Steve:
Tort law 101 holds that the tortfeasor must act reasonably in light of the foreseeable circumstances. The duty to warn (to act reasonable) for a business serving consumers (invitee) changes with the varying risk


I might have misunderstood your meaning here, but the McDonald's case wasn't a failure to warn case, was it? Because all those warning labels that say "danger, the coffee in this cup is extremely hot!" always seemed to miss the point, to my way of thinking.

Not everything can be reduced to informed consent. Sometimes, the law just expects you to act in a safe manner.
10.3.2006 7:43pm
josh:
steve, my understanding is that it was a failure to warn case. parhaps i have it wrong b/c that was the aspect my torts professor focused on. while i agree not everything can be reduced to informed consent, i do think a giant label warning of extreme heat does a lot more than critics of the case would admit.

I do recall my prof asking socratically whether mcdonalds should have to put pictures of third degree burns on their warning labels. giving far more ground than we've seen from tdp in this thread, i would admit that this issue is the most problematic for the duty to warn aspect.

However, i still think there's a reason besides runaway juries or evil pi attorneys that every coffee vendor in the us relies on those labels, just as every department store marks recently mopped areas.

Do they fully inform the consumer of the full extent of potential harm? No, but they do demonstrate on behalf of the vendor an attempt to act more reasonably in light of the foreseen dangers.
10.3.2006 8:15pm
CaDan (mail):
*pours coffee on TDP's lap while he is sitting strapped into the passenger seat of a car*

One Thousand One

One Thousand Two

Too late. No damages for you!
10.3.2006 9:09pm
David M. Nieporent (www):
Josh:
I read the "quite a bit" of material you have on the McDonald's case, and you fail to address the very valid point brought up by New Lawyer, which is that the jury sustained large punitive damages because of the bean-counting done by McDonald's to accept known injuries in the face of higher sales.
But that's not a valid point. Of course they did "bean-counting." All companies do bean-counting. We want companies to do "bean-counting." The fact that they do so outrages economically illiterate jurors, but it's not something to frown upon, let alone punish. What's the alternative? To make business decisions blindly, without figuring out the costs and benefits?

While most people know they will be burned by hot coffee, I defy anyone who has not been aware of the McDonald's case intimately to accurately describe the harm. If one were to conduct a poll, most respondents likely would say they would be burned. But to what degree?
But that's irrelevant. We don't demand that companies teach people biology before they serve products. It's sufficient -- or should be -- to charge customers with knowing the nature of the risk, not the exact amount of it. (The nature of the risk -- if you spill it on yourself, you will be burned -- is what determines whether you as a customer can avoid it.) Consider: does the average person know that a fall from a height can be dangerous? Of course. Does he know that a fall from a 10' height = X risk and a fall from a 20' height = Y risk and a fall from a 30' height = Z risk? No. But who cares? He knows what the danger is: falling. If he chooses to undertake an activity where there's a risk of falling, he has assumed that risk; he isn't entitled to a physics lesson first.


These disputes simply turn on whether the vendor has a duty to warn.
The problem is best illustrated not by the bed case, but by the McDonalds case: they did warn. She just claimed the warning was insufficient. The problem is that by definition, if you're injured, the warning was insufficient for you. So the plaintiff comes into court with a ready-made un-disprovable claim: "If the warning had been better, I wouldn't have been injured," and the company has an unprovable defense: "That warning is sufficient."
10.3.2006 9:32pm
David M. Nieporent (www):
As a matter of fairness, doesn't it seem reasonable that if McDonalds is going to make a decision to serve scalding hot coffee based on the fact that it is more profitable for the company to pay burned people than to serve coffee less hot, they should be required to actually make the payments that their cost-benefit analysis contemplated? After all, McDonalds does the cost-benefit analysis, not the burn victims. Of course, the burnees did in fact spill coffee on themselves, but that is always true. The factory workers of The Jungle fame who fell into vats of boiling food fell all by themselves - the company did not make them fall. But it also didn't install railings, knowing full well that some subset of workers would fall in and die. Likewise, McDonalds knew that some subset of coffee-drinkers would get burned by spilling coffee on themselves.
That's a set of perfectly reasonable statements, new lawyer. Indeed, if the jury had said that McDonalds had to pay the woman's medical bills, I might not have agreed, but I would not hold this up as the prototypical frivolous case.

Only one problem: that's not what the jury said. Stella Liebeck did not merely get the payment that their cost-benefit analysis contemplated. She got lots of other people's payments also. They slapped McDonalds with punitive damages. And it wasn't based on any calculation about the number of other people injured and the payments they should have received; it was just a random number. ("Two days' worth of coffee sales," I believe.) Any other people actually injured don't see that money; to the extent your view of the case is valid, it's just a wealth transfer from those people to Liebeck and Liebeck's lawyer, via McDonalds.
10.3.2006 9:42pm
David M. Nieporent (www):
DeezRightWingNutz:
Is one able to drink coffee at the "appropriate" serving temperature? If not, why is it the appropriate serving temperature? I'm not arguing that an entity should have product liability exposure for putting out coffee that's too hot to drink, but I'm dubious of everyone's claims about the proper serving temperatue being hot enough to cause third degree burns. Maybe I'm a wuss, but I can rarely drink coffee unless it sits for five minutes. Good for the construction worker, bad for me.
1. You're a wuss. :)

2. Most people add stuff to coffee (cream, sugar) and stir. This cools the coffee. If you serve it merely warm, then it becomes tepid by the time you try to drink it.

Lastly, was there anything in the McDonald's case about the cup being defective.
No. That's been an element in other (non-McDonalds) cases, but not this one. That would be a much stronger claim for negligence. Coffee is supposed to be hot; cups are not supposed to disintegrate when coffee is in them.
10.3.2006 9:44pm
Mike G in Corvallis (mail):
Josh wrote: "No one disputes what consumers wants, or seeks to deny them that in the free market. These disputes simply turn on whether the vendor has a duty to warn."

And does the vendor have a duty to warn? Consider: simply because a corporation has made the calculation that some number of people per year will be so inept or unlucky as to seriously burn themselves, and then has made the rational decision that paying the medical bills of these unfortunate people will be less expensive than fighting their lawsuits in court and winning, doesn't seem to me to establish a duty to warn. How any why has a duty to warn on the part of the vendor been established when everyone knows that hot coffee can injure you, to whatever degree?

(Please don't tell me that Stella claims to have made a rational and deliberate choice to assume the risk of her dangerous act in holding the coffee cup where she did, based on the premise that "I knew it would hurt me if I spilled it, I just didn't know how much it would hurt!")
10.3.2006 9:53pm
jessica9802 (mail):
Oh, the McDonald's coffee case. I remember it well from my first day of Torts in 1L. If only McDonald's had agreed to settle Stella Liebeck's claim for $800 as she requested. But they didn't, and here we are. It's important to remember that she wasn't driving when she spilled the coffee. The car wasn't moving, either. And the jury found her 20% at fault for the accident and reduced damages accordingly. Anyway, during trial prep, her attorneys sent a law student out to test the temperature of coffee at other restaurants. At most places coffee is served at 155 degrees. Above that temperature, and the risk of burns increases exponentially according to a thermodynamics expert she hired. McDonald's served its coffee between 185-195 degrees. If the coffee had been served at 160 degrees, it wouldn't have given her third-degree burns in two to three seconds.

After working some insurance defense cases, I could hardly be described as pro-plaintiff. Nonetheless, I think the jury got it right in the Liebeck case.
10.3.2006 10:01pm
Politicomonkey (mail) (www):
While I definitely agree with the appellate court's decision, this case isn't as ridiculous as it seems.

It looks from the decision that the main case that the plaintiffs were putting forward was a design defect case. The fact that a bunk bed doesn't have some sort of barrier definitely can be seen as a design defect, it just happens that bunk beds made for colleges have exempted from this requirement so this was dismissed. So long as you are bringing a design defect case, it usually makes sense to throw in a "failure to warn" claim as a back up, it hardly takes any additional time and it often is easier to win.

As for the first judge not dismissing this case out of hand, the restatement does seem to indicate that whether a hazard is obvious is usually a question of fact for the jury and the kid was asserting that he took additional steps after falling, which at least implies that a warning may have helped.

The jury on the other hand...idiots.
10.3.2006 10:19pm
David M. Nieporent (www):
Jessica
Oh, the McDonald's coffee case. I remember it well from my first day of Torts in 1L. If only McDonald's had agreed to settle Stella Liebeck's claim for $800 as she requested. But they didn't, and here we are. It's important to remember that she wasn't driving when she spilled the coffee. The car wasn't moving, either.
1. The ATLA propaganda/"fact sheet" says that she asked for $20,000, not "$800."

2. Why is it "important to remember" either of those things? How are they relevant?

Anyway, during trial prep, her attorneys sent a law student out to test the temperature of coffee at other restaurants. At most places coffee is served at 155 degrees.
This is false, and what kind of expert testimony exactly does, "A law student went to a couple of restaurants" constitute, anyway?

McDonald's served its coffee between 185-195 degrees. If the coffee had been served at 160 degrees, it wouldn't have given her third-degree burns in two to three seconds.
And if I had eight legs I'd be an octopus. So what? I don't understand why you think that this proposition is relevant, assuming the science is accurate. The fact that a product can be made safer is not sufficient evidence of wrongdoing. If it were 160 degrees, she can claim it should have been 140 degrees. Or 120 degrees. But coffee is supposed to be hot, not lukewarm.

Maybe McDonalds' mistake was selling coffee to old people, who aren't very agile and have thin skin. (Of course, if they had refused to sell to her on that basis, they'd have been discriminating. Ooooh.)
10.3.2006 10:32pm
jessica9802 (mail):
"1. The ATLA propaganda/'fact sheet' says that she asked for $20,000, not '$800.'"

Excuse me; I misread one article this afternoon. I still think that her intial settlement offer was reasonable in light of her medical expenses and the pain she endured.

"2. Why is it 'important to remember' either of those things? How are they relevant?"

For the calculation of contributory negligence. Many people assume that Stella Liebeck was driving or that the car was moving when she removed the lid.

"This is false, and what kind of expert testimony exactly does, 'A law student went to a couple of restaurants' constitute, anyway?"

Who said it was expert testimony? As far as I know, it doesn't take special knowledge or skill to measure the temperature of coffee. If it was false, surely McDonald's introduced evidence to the contrary. The jury then weighed the evidence, did they not?

"The fact that a product can be made safer is not sufficient evidence of wrongdoing. If it were 160 degrees, she can claim it should have been 140 degrees. Or 120 degrees. But coffee is supposed to be hot, not lukewarm."

Yes, coffee is supposed to be hot. Unless it's iced, of course. Anyway, a negligence case turns, in part, on whether the conduct was unreasonable in light of the risk to the injured party. Now, my knowledge of negligence law is Oregon-specific, but I don't think Oregon law deviates substantially from the common law negligence analysis. In the Liebeck case, the question would be, "Was it unreasonable to keep coffee at 185-195 degrees?" How does one determine whether the conduct was reasonable? What factors are taken into consideration in making that determination? Do we not take into consideration the likelihood of harm, the magnitude of harm, the cost of preventing the harm, and the social utility of the defendant's conduct?

Whether you like it or not, the tort system doesn't merely redress injuries; it seeks to prevent future harmful conduct. Is it abused? Absolutely. There's a lot of cases, like the one about the loft bed, that make me shake my head. I saw a handful while working as a law clerk in a state trial court--none of which ended in a plaintiff's verdict. Regardless, I still believe that there is some social utility gained from making private citizens or the government accountable for the foreseeable, easily preventable, serious harms they inflict on others.
10.4.2006 2:54am
Random Numbers (Brian Epps) (mail) (www):
Jessica: I don't think the McCoffee case would have flown in Oregon. I think a steady stream of Coffee snobs (like yours truly) would be lining up to testify.

From the National Coffee Association's (Yes, I have it in my bookmarks folder.) Website:



Your brewer should maintain a water temperature between 195 - 205 degrees Fahrenheit for optimal extraction. Colder water will result in flat, underextracted coffee while water that is too hot will also cause a loss of quality in the taste of the coffee. If you are brewing the coffee manually, let the water come to a full boil, but do not overboil. Turn off the heat source and allow the water to rest a minute before pouring it over the grounds.

On serving Temp:

Brewed coffee should be enjoyed immediately!

Pour it into a warmed mug or coffee cup so that it will maintain its temperature as long as possible. Brewed coffee begins to lose its optimal taste moments after brewing so only brew as much coffee as will be consumed immediately. If it will be a few minutes before it will be served, the temperature should be maintained at 180 - 185 degrees Fahrenheit.


I would say that brewing coffee at the best known temperature and serving at the best known temperature, according to the people who love coffee best, can be considered reasonable.
10.4.2006 6:44am
Steve:
That's a jury argument, sorry. The website of the "National Coffee Association" does not have the force of law.

One reason I get annoyed by "tort reform" arguments is that they often rely on nothing more than taking the defendant's expert report as the gospel truth.
10.4.2006 10:17am
Random Numbers (Brian Epps) (mail) (www):
I'm speaking of the reality of coffee brewing, not the fictitious crap that gets declared in courtrooms. The reality is that the pot of coffee I made here at home with a Bunn was 180 by my commercial cooking thermometer (an old hold-over from my brother's catering days) 15 minutes after brewing. The reality is that it is not reasonable to expect a restaurant to make weak, tepid coffee in order to satisfy pissant little control freaks. The Liebeck case was a denial of the basic reality that coffee is hot.

You want a tort reform argument(note the lack of "scare quotes")? How about a provision on who was in control of the accident? If the accident was caused by a defective cup or a misplaced lid, then McDonalds should be liable, but Liebeck herself created an unsafe condition by opening a cup of liquid that was and should be hot in an unstable manner. I'm willing to bet that almost if not all of those 700 scald cases over 10 years involved someone who had consumed coffee in the same or similar McDonalds served at the same temperature.

If it is not reasonable to expect people to handle hot liquids on a safe manner, then perhaps we need to ban coffee.

My Bunn doesn't have a temp control. If I dropped my cup in my lap it would burn like hell. Should I then sue Bunn? No. It would be my handling of the product, not the product itself, that caused my injury. If however, the handle wre, through poor design or workmanship, suddenly come off the carafe while I was pouring, I would have cause, because something in Bunn's control made the coffee dangerous beyond my control.

In Liebeck's case, the product was not any more unsafe than if she had made coffee in a Bunn at home (Brewing temp 190-200 holding temp 180-190). The only thing that made it unsafe was her handling of it. McDonalds did not create the harm any more that Plumb would have if she had dropped a hammer on her toe or Ruth's Chris if she had pulled their sizzling steak plate in her lap.

Liebeck's lawyer won that case for her by emotional appeal.
Coffee is hot.
Liebeck was careless.
That is reality.
Quit denying it.
10.4.2006 11:42am
Random Numbers (Brian Epps) (mail) (www):
Oh, and BTW the NCA is not a defendent's expert, they are a nearly century old trade association. Pardon me if I take their word, Bunn's word, Mr Coffee's word, and every freakin' coffee snob's word over yours or any plaintiff's hired liar on what temperature coffee is expected to be brewed and served at.
10.4.2006 12:19pm
Steve:
Again, excellent closing argument, but it's still a jury question.
10.4.2006 1:26pm
David M. Nieporent (www):
Again, excellent closing argument, but it's still a jury question.

The Seventh Circuit didn't think so in the Bunn-o-matic case.
10.4.2006 1:59pm
Norman:
Steve, do you acknowledge that there are some situations where, as a matter of law, the facts are such that no "reasonable jury" could find for the plaintiff - and yet if this same case went to an actual trial, the jury might still find for plaintiff? That is whole rationale behind summary judgment and judgments as a matter of law (or judgments notwithstanding the verdict).
10.4.2006 2:18pm
Steve:
Steve, do you acknowledge that there are some situations where, as a matter of law, the facts are such that no "reasonable jury" could find for the plaintiff - and yet if this same case went to an actual trial, the jury might still find for plaintiff?

The New Jersey case which prompted this very post is an excellent example of that, sure. As a defense lawyer, I don't need to be persuaded of the utility of summary judgment.

But the argument that McDonald's coffee wasn't too hot because the National Coffee Association recommends the same temperature doesn't rise to the same level.

The Seventh Circuit didn't think so in the Bunn-o-matic case.

You're misstating the holding of the case. The case actually says:

Warning consumers about a surprising feature that is potentially dangerous yet hard to observe could be useful, but the record lacks any evidence that 179 degrees F is unusually hot for coffee. Neither side submitted evidence about the range of temperatures used by commercial coffee makers, or even about the range of temperatures for Bunn's line of products. The McMahons essentially ask us to take judicial notice that 179 degrees is abnormal, but this is not the sort of incontestable fact for which proof is unnecessary.

Had the plaintiffs submitted evidence of what the appropriate temperature would be, and the court disregarded that evidence because it found something like the ANSI standard or the National Coffee Association's website to resolve the issue as a matter of law, yes, the case would be on point.

But in the McDonald's case, both sides submitted evidence of what temperature they believed to be appropriate for serving coffee. Just because someone's opinion is that the defendant's sources were better, that doesn't mean the question should have been kept from the jury.
10.4.2006 3:13pm
Just John:
Just to clarify something in my post (second from the top): I mentioned that I've never seen labels posted saying not to climb onto a machine and then fall asleep and roll off. That's true, but in the manuals I write there is an "Intended Use" section which details exactly what the tool is going to do, and says that doing anything else with the tool may cause an unsafe condition. So technically, someone climbing onto the tool and falling asleep wouldn't have a case if he fell off, but someone climbing onto a bunk bed and falling asleep still might, since the bed's intended use is for people to climb up and sleep. (Of course, you still might not have a case, as was the case in this case.)
10.4.2006 4:03pm
TDPerkins (mail):
Steve writes:

But the argument that McDonald's coffee wasn't too hot because the National Coffee Association recommends the same temperature doesn't rise to the same level.


The NCA, ANSI, and 42 of the 44 people I asked at work who drink coffee (I couldn't reach two). Also my wife.

Steve, quoting the 7th Circ.
Warning consumers about a surprising feature that is potentially dangerous yet hard to observe could be useful, but the record lacks any evidence that 179 degrees F is unusually hot for coffee.


Steve is not acknowledging the record will always lack evidence that 179 (or 185, or 195) is an unusual temperature for coffee--because these are all perfectly normal temperatures for coffee.

Just because someone's opinion is that the defendant's sources were better, that doesn't mean the question should have been kept from the jury.


The question should not have been brought to a jury because what occaissioned the injury was the victim's own failure--it had nothing to do with a question of the abnormality of the temperature of the coffee.

Yours, TDP, ml, msl, &pfpp
10.4.2006 4:31pm
josh:
What is it about the rhetoric on this blog -- the notion that making an argument more emotionally, with more anger, will be more persuasive? I don't get it.

Today's anger comes from David M. Nieporent whose rebuttals start "That's false!" "Irrelevant!" and the like.

Let's see if we can calm it here and address some of the arguments.

DMN says: "But that's not a valid point. Of course they did "bean-counting." All companies do bean-counting. We want companies to do "bean-counting." The fact that they do so outrages economically illiterate jurors, but it's not something to frown upon, let alone punish. What's the alternative? To make business decisions blindly, without figuring out the costs and benefits?" Just because we want companies to do bean counting doesn't mean we want to help them defer the Cost side of the Cost-Benefit analysis. The wilfullness of choosing the profit over the known risk (and I don't have a moral problem with that. But that is the fact of what the company did) lead the jury to punitives as punishment for.

For example, I can know that my negligence causes pollution to emit from my factory, and accept the corresponding litigation costs from, I don't know, Greenpeace, because I can outspend them, and my profits from my factory heavily outweigh what I think my litigation exposure is. But if a jury hears testimony about my calculation, would it be "runaway" to punish me beyond compensitory damages? I don't think many jurisdictions would say so.

DMN takes issue with my (and others') arguments about a plaintiff's knowledge of the SCOPE of potential harm. I think this argument is more persuasive, but, unfortunately, the zeal of tort reform often seeks to apply it in a blanket fashion, rather than on a case-by-case basis. DMN, I entirely agree with you on your bed-fall example. No failure to warn in that case. No need to explain the relative dangers of falling from 10 feet versus falling from 20.

But, again, that rule can't apply across the board, can it? I don't plan on persuading you or any of the others so vehement in this thread, but I think there could be cases where the extent of harm could be so severe, and (despite our deep, deep intelligence here) it would be reasonable for a potential plaintiff to claim ignorance of the full scope of the harm. I could some situations where it would be most efficient for the defendant to informing consumers of how bad an injury everyone knows is out there actually can be.

I suppose one example could be smoking. I'm sure this will get some very heated responses (everyone knows smoking kills), but I'm not sure that always was the case, particularly with the older plaintiffs. Did they know it was a danger? Of course. Did they know in the 1930s, say, that it was addictive or that it did much beyond making you lose wind when climbing stairs. Not so sure. I'd fell a little "intellectual elitist" to apply today's knowledge of harm to back then.

To show good faith, I'll even conscede that perhaps there are better ways to handle this ex ante, raher than after injury occurs (require warning labels before holding liable for injury). Again, case-by-case, and in the smoking arena, I don't think tobacco companies were too keen to that idea pre-liability)

Mike G: "(Please don't tell me that Stella claims to have made a rational and deliberate choice to assume the risk of her dangerous act in holding the coffee cup where she did, based on the premise that "I knew it would hurt me if I spilled it, I just didn't know how much it would hurt!")

I'm not telling you that. That's why we have contributory negligence. But as to the general scope of harm and whether vendors have any duty to warn, I would say yes, there are cases where that would apply.

DMN, you're responses to Jessica show how your anger clouds your judgment. She admitted misreading the proposed settlement amount (let's not get into the fact that it should e confidential). But even under your "ATLA propoganda," it's still far less than her ultimate award, even after being reduced. That sort of contradicts your "propoganda" that she and her lawyer were greedy good-for-nothings.

Also, aside from misrepresenting the 7th Circuit holding, I think it a little unwise to compare a decision from a legendarily utilitarian court (Easterbrook and Posner) to a jury verdict that goes against everything they have written about academically and philosophically. That's not to say their holdings aren't in good faith. It's just that one would expect Easterbrook to disagree with the jury verdict here.

As to the rest of your response to Jessica, I think she states it dead right. Your (and Random Numbers') increasingly emotional responses of "Coffee is supposed to be hot" fail to address the relative requirement for a duty to warn in light of increased risk. Regardless of the emotion, there simply is not a blanket, black-and-white rule. Some risks (hot, versus, hotter, versus too hot) trigger different duties. Saying "coffee is supposed to hot" as loudly as possible does not address the issue.
10.4.2006 4:56pm
TDPerkins (mail):
Your (and Random Numbers') increasingly emotional responses of "Coffee is supposed to be hot" fail to address the relative requirement for a duty to warn in light of increased risk.


That's just it Josh, there was no increased risk associated with the McDonald's coffee compared to other coffee. Any coffee, properly prepared, may cause such injuries.

That's why the lawsuit was frivolous.

Also your perjorative and fallacious use of the word "anger" does nothing to buttress your weak arguments.

Yours, TDP, ml, msl, &pfpp
10.4.2006 5:54pm
martyB:
All's I know is, before that lawsuit I could walk into ANY MacDonald's in the country and get an excellent, consistant cup of coffee. It was very much a dependable and known quality product. Now they mostly taste like soapy ink. I wish I could sign a waiver in the drive up lane to get the good stuff again.
10.5.2006 12:23am
Deoxy:
The industry standard for coffee is 180-190 F serving temperature. I know this from working food service. My manager raked someobody over the coals one day for serving coffee too cool (below 190 F - that was the temperature he wanted and quoted as what should be served - profssional food service manager), and yes, that was after Liebeck.

How much evidnce does it take that something is "standard? EVERY STANDARD for coffe - every single on - lists at least 180 F. ALL OF THEM.

Go to Starbucks right now. Or Bunn-o-matic. Or any other repuatable coffee place. You will get 180+ F coffee, or you will have a complaint to the management. Anything less is BAD PRODUCT.

Or can you sue a knife maker for making a knife that was "too sharp"? How about a car manufacturer for making a car that is capable of going too fast? Or accelerating too quickly?

when something is the world-wide industry standard (and yes, I mean "world-wide"), second-guessing it court is INJUSTICE.

There have been many other such cases as Liebeck... and they all lost.

The Liebeck case was and is an injustice, and not to Liebeck.

People saying otherwise: are you aware that the jurors afterwards admitted that the reason they found the way they did was basd primarily on the following 2 things?

-the McDs executives didn't seem caring enough.
-The jurors thought "statistically insignificant" means "we don't care how many people get hurt" instead of "very extremely amazingly few people get hurt in comparison to amount of coffee we sell"

in short, thy found as thy did bcause they were emotionally swayed and ignorant of the meaning of "statistically insignificant". THAT is what you are defending. Emotion and ignorance over law.

If "verdict notwithstanding the judgement" has any place in our legal system, this is it.
10.5.2006 7:44pm