[Note: Due to unexpected circumstances, The Prodigal Son's first column has been delayed. In its place, I'm presenting a special feature. Shortly after I started my website, I put a page up dealing with personal responsibility. The example I used as the centerpiece for that mini-rant was the woman who spilled coffee on herself, then sued McDonald's because the coffee was too hot. I recently got email on that particular case, referring me to a site that claimed to tell the truth about the circumstances. When I responded to this party, I decided to save a copy of my replies, in hopes that they might prove entertaining and/or educational. What follows is an edited version that doesn't identify the original correspondent, and is hopefully more suitable for audience viewing. Text in this color, which will also be indented on most browsers, comes from the page that the correspondent referred me to for "the truth". Please note that I have performed no editing whatsoever on that text. On the other hand, text in this style was written by the correspondent in response to my points. Enjoy; this is the sort of encounter that made me decide to start this zine in the first place. - Rev. Bob]
No one is in favor of frivolous cases of outlandish results;
On the contrary; lawyers love those frivolous cases, and if public opinion was really so weighted against them, the cases would never even come to trial. The words "Case dismissed!" come to mind. The fact is that the structure of our legal system lends itself to frivolous lawsuits.
McDonalds coffee was not only hot,it was scalding and capable of almost instantaneous destruction of skin, flesh and muscle.
I find this extremely hard to believe. Think about it; if the coffee was that hot, nobody would be capable of drinking it; the inside of the mouth is much more tender than the skin of the thigh.
After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.)
And how do they know this, anyway? What, did she claim this in her defense? I guess it's inconceivable that someone might "fudge the truth" a bit to look less like a lame schmuck when suing someone for something you have no business suing them over in the first place, right? Furthermore, what difference does it make? If you can't handle a hot beverage, don't order one - it's that simple.
Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.
So she's a klutz. Where was her grandson during all this? Let me guess - he was too busy driving the parked car to help his own grandmother remove the lid from a cup of coffee. Stupidity in action....
The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin.
This tells me that if we're going to blame an external factor, clearly the coffee wasn't at fault, but rather her choice of clothing was. After all, logic dictates that if the sweats hadn't absorbed the coffee, it wouldn't have been next to her skin for that long. McDonald's has no control over what their customers wear when they leave the house in the morning.
A vascular surgeon determined that Liebeck suffered full thickness burns (or thirddegree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.
As well they should have. If you injure yourself, it's your own fault. This case makes about as much sense as would, say, suing Sears because someone bludgeoned you with a Craftsman wrench. Assign fault where it truly lies - which, in this case, is with the consumer.
During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved thirddegree burns substantially similar to Liebecks. This history documented McDonalds knowledge about the extent and nature of this hazard.
Let's look at this for a second. There are how many McDonald's restaurants in the world? This averages out to 70 people per year, or one person about every 5.2 days...worldwide. Lightning strikes are more frequent.
McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.
So what they're saying is that a difference of 50 degrees is enough to instantly (instantly!) destroy skin and muscle. Sorry, I just don't buy it. Scalding, sure - but people get scalded by coffee every day. The vast majority of 'em aren't ignorant sots who just sit there and wonder what that strange sensation is in their lap. Most people have a reaction to pain - they remove the source, and the pain goes away. Then again, some people are idiots who can't make that simple logical step.
Further, McDonalds quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.
As well they shouldn't. As the numbers indicate, the vast majority of people who drink McDonald's coffee have absolutely no problem avoiding this "burn hazard".
Plaintiffs expert, a scholar in thermodynamics s applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebecks spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.
Wow, they brought in a thermodynamics "scholar"? Not someone with a degree, just some nebulous "scholar"? How fascinating. Technically, a freshman who just attended his first class is a "scholar"; wouldn't the expert's degree be identified if he actually had one?
McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving.
And the numbers also indicate that the vast majority of people have no problem doing exactly that. One person every five days, out of about 21,000 restaurants worldwide (info from McDonald's), each of which serves how many cups of coffee? Consider an absurdly low estimate of 50 cups per store per day - that's five million people who can adequately deal with McDonald's coffee immediately. What are those odds of getting hit by lightning again?
McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee
...probably because it doesn't happen....
The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill.
Twenty percent at fault, eh? I'd say those numbers are close to reversed; yes, McDonald's could serve colder coffee, but it's not like the drive-through window employee spilled it on her, now is it? She spilled the coffee on herself; she is at fault.
The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds coffee sales.
Oh, good - better numbers! Let's make this really simple and say that's a buck a cup. This means that 6.75 million people successfully consume McDonald's coffee without receiving third-degree burns for every one person that does. Those are pretty good odds in my book....
The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds conduct reckless, callous and willful.
Reckless? No; their policy is clear and not at all subject to whim. Callous? Hardly; is it callous to serve hamburgers when you know that some people are vegetarians and consider serving meat tantamount to murder? Willful? No, McDonald's did not willfully cause anyone third-degree burns.
No one will ever know the final ending to this case.
How convenient.
The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting.
Consider the direction the awards were going - does it really take a criminal justice major to see what happened? I think not.
After this missive, I received more email. Again, here's my response (quoting his message would be redundant, as the parts I'm responding to are quoted here anyway): |
It is difficult to have a debate with someone who dismisses evidence presented in a case by saying that they "just don't believe it" or refer to someone who is injured as an "idiot." As far as I can tell, you are not a doctor or engineer, or do you have any other particular expertise to blithely dismiss evidence that the temperatures at which McDonalds served its coffee created a serious danger of burns. If you simply reject such evidence, then we really can't have a debate about this, can we? Try pouring water at that temperature on your skin and report back to me on the results.
How about if I cite some of my experience in the field of fast food? I currently work at a restaurant, and so can tell you about those conditions fairly easily. Chili is kept at 165 degrees; I've spilled some on myself without even a first-degree burn. The "cold side" of the grill is kept at 200 degrees, and the hot side is twice that - and I've routinely handled meat directly from the grill. (The sandwiches have to be put together - and that involves, in this restaurant's procedure, grabbing the meat and one bun to flip them onto the other bun. This is extremely difficult to do without touching the meat, and in fact the normal procedure is to hold the meat with your thumb while grabbing the bun with your fingers. If the meat was a burn hazard, the thumb would receive multiple burns in a single lunch rush.) I've also handled onion rings that have been cooked in 350-degree fry oil within a few seconds after they've been removed from the vat - and I've done so during many rushes. Never once have I been burned at all in doing so, let alone in the third degree.
Because of that experience, I see no credible argument for the "seven second third-degree burn" concept. In fact, I find that idea ludicrous; I've handled stuff that hot on a regular basis, and never once have I been burned at anything CLOSE to that degree. (Yes, I have been burned a few times - to about a sunburn level of severity, at most.)
I also find it difficult to swallow as gospel anything coming from a "consumer attorneys" group of this nature, just on general principles. The terms "conflict of interest" and "editorial slant" come to mind rather quickly; consumer attorneys make their livings from this sort of case. Of course, I wouldn't ask you to take my word for it - so here's a section from their "About CAOC" page:
Who are the Consumer Attorneys?
CAOC is an organization of more than 4,000 lawyers who represent plaintiffs/consumers who seek responsibility from wrongdoers...
- Consumers injured or killed by defective products or drugs;
- People who suffer discrimination because of age, gender, disability or race;
- Those injured or killed because of another's negligent acts;
- Citizens whose civil rights have been violated;
- Workers who have been fired unjustly or injured on the job;
- Investors and other wronged by financial institutions (including failed savings and loans);
- Insureds whose lives fall apart when an insurance company acts in bad faith and in violation of its own contract;
- Patients who have been damaged personally and financially by negligent professionals.
Accepting a statement about the evils of McDonald's coffee from this source without further support would be about as reliable as believing that the Holocaust never happened because I read it in a neo-Nazi tract. The term for the day is "propaganda."
The fact is that the jury that decided this case -- and all other juries -- are full of ordinary people bringing their common sense and a healthy dose of skeptisism to bear on the evidence presented.
To cite Sturgeon's Law, "90% of everything is crap." Sadly enough, this includes humanity. I see it every day; how can I have faith in humanity when the majority of people I see can't even understand the menu at a fast food joint?
Lawyers do not decide the cases -- juries do.
That's like saying that used-car salesmen don't trick people into buying lemons, but that people intentionally buy faulty cars. Look at the uses smoke and mirrors are put to in legal cases - the O.J. Simpson case comes to mind as a shining example.
If your reply is to take it out of the jury's hands, then you are suggesting that the average person is too stupid to make a rational decision based on the law and the evidence. I have more faith in the average citizen than that.
You must not know many average citizens. Most of the ones I see - and I do see a lot of 'em over the course of a day - are hard-pressed to understand that when there are no newspapers on a rack, that means that the store is out of newspapers. (Or, as a comedian once put it, cases are decided by people too stupid to get out of jury duty. Oversimplified, certainly - but with a grain of truth nonetheless.)
If not the jury, who decides? You? Me? Are we going to have some supposed "superior" class who decideds these matters? No thanks.
We already do: lawyers. (And if you think cases are usually decided more on legal points than on lawyers' charisma, I hope you wake up soon.) If true justice were applied in this case, it would have been dismissed as a frivolous lawsuit the moment the papers were filed.
I belive the jury here was rightly incensed that McDonalds continued to serve a product that was dangerously hotter than it had to be, despite numerous complaints, and despite the fact that there was no rational reason for having the coffee at that temp. Also remember that the jury did, in fact, rightly find that the Plaintiff contributed to her injuries.
They found her 20% responsible. I find her at least 90% responsible. She quite simply should have known better than to try to handle a cup of hot coffee if she can't take the lid off without spilling the contents. Any way you slice it, that act was her choice - and therefore she is responsible.
You also seem to suggest that given how relatively few people were injured by this, there ought to be no problem.
I'm saying that because so incredibly few people are injured by this, there is no problem - at least, not one that McDonald's can fix. Coffee isn't a malevolent entity out to burn people; it's a neutral substance that acts according to the laws of physics. Millions of people every day are able to successfully purchase and consume McDonald's coffee. According to the statistics you cited, the majority of those people start drinking their coffee right away - something that would be impossible to do without injury if the "evidence" that it takes two to seven seconds for 185-degree coffee to cause a third-degree burn is valid.
Businesses can't stay in operation if their policies consistently injure customers. I'm not even talking about legal recourse here; if I think McDonald's coffee is too hot, I'll go elsewhere. Voting with your wallet is the surest way to be heard, and McDonald's has obviously not been given any such mandate.
I am unwilling to sacrifice innocent people in this way. To take your Sears analogy to a higher level,
(Not to mention an invalid one, because you've completely changed the scenario to make it look more like what you want it to be....)
if the wrenches they make shatter when used and have seriously injured just a few people, would you argue that no recovery ought to be had because everyone knows that tools sometimes break when you use them?
Completely invalid analogy. First of all, coffee is supposed to be hot. Tools, on the other hand, are not supposed to break. Hot coffee is expected; defective tools are not. Second, you've stated that the wrenches "shatter when used" - as if this were the inevitable result, or at least common practice. If my chances of being burned by McDonald's coffee are that good, I'll start playing the lottery; I have a better chance of winning the lottery than of being burned by McDonald's coffee, as evidenced by (a) the documented lottery odds, and (b) the mathematics I related in my last message, which show that your chances of being burned by McDonald's coffee are about one in 7 million.
If your mother, sister, wife, or daughter had burned herself with McDonald's coffee, and you learned that 700 other people had been burned by coffee that was hotter than it needed to be, what would you have done? Would you have told them that McDonalds can do what they want without regard to the safety of their customers? Do you suggest that McDonalds has no obligation to its customers?
Oh, this is amusing. Instead of sticking to a purely logical plane of discourse, you've got to go for the emotional sucker-punch to try to make me agree with your position. However, you're out of luck; my position is that everyone is ultimately responsible for their own actions - no matter who they are. If my own mother had burned herself with a cup of coffee under those circumstances, I'd say that she did it to herself and should face up to the consequences. Yeah, it's sad, and I would give her moral support if she managed to actually injure herself in that manner, but the bottom line is that that's life, she's responsible, and this is not a valid reason to sue somebody.
If you choose to get in your car and go to a restaurant to get coffee, and subsequently spill it on yourself, it's been your decision all along. If at some point that decision is made for you, or you make it on bad information (for instance, an employee spills the coffee on you, or the coffee is much hotter today than it was yesterday, or you asked for some ice in the coffee to cool it down, but the ice wasn't put in the cup), then the company would have legitimate fault issues. However, that didn't happen. The restaurant did their job normally and consistently, and so they are not at fault. The person at fault is the woman who wanted the coffee, purchased the coffee, and spilled the coffee all over herself.
If I decided tonight to take a nap on a set of railroad tracks, should my family sue the railroad for running me over? Of course not; I went out there, I stretched out, and I went to sleep, so the railroad is not to blame for my stupidity.
For the record, I also disagree with the practice of suing tobacco companies because you come down with lung cancer. Everyone knows cigarettes are dangerous, so if you continue to smoke, it's your own fault if you get cancer from it. In other words, people need to take responsibility for their own actions instead of blaming other people - which is exactly the point that I wrote that essay to illustrate.