A survey by Tampa’s ABC Action News confirms a point often made by Ted in this space: “The Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee.” [Nick Farr, Abnormal Use]
Aurora Hill alleges that McDonald’s coffee is “extremely hot in the extreme” and caused nervous shock, pain, and scarring when it spilled on her. (Aimee Green, The Oregonian, Feb. 4).
You may recall that part of the trial lawyer fiction about the merits of the infamous Stella Liebeck suit was that it supposedly successfully caused fast food restaurants to lower the temperature of coffee so that no one would ever be burned again.
My faith in humanity is encouraged when I see that the poll of Consumerist blog readers on the topic marks 86% for the option “Hot coffee is hot. Deal with it” on a blog that usually is reflexively pro-trial lawyer. Ironically, I wouldn’t count this suit as entirely meritless: Hill alleges that McDonald’s workers failed to adequately affix the lid to the cup, causing the spill as they handed her the coffee in the drive-through, which, if true, would strike me as actionable.
If you recall, the theory of defenders of the McDonald’s coffee case was that McDonald’s, and only McDonald’s, served coffee so hot as to burn, and thus merited special disapprobation.
As Overlawyered readers know, that just ain’t so. The recommended serving temperature of coffee can cause third-degree burns; coffee-drinkers prefer coffee that is that hot. Thus, lots of vendors sell coffee that causes third-degree burns when spilled.
Add to that list the Pilot Travel Center truck stop in Mount Sterling, which is the defendant in a Kentucky suit brought by Thomas Skaggs, who says he spilled coffee on his leg in December and got a third-degree burn. The skimpy press coverage on WLKY.com gives no further details other than an unimpressive photo.
The McDonald’s coffee case came up in a comment-board discussion of the MySpace suit on the WSJ Law Blog, and, as is common thanks to a tremendously successful propaganda campaign by the plaintiffs’ bar, a law student popped up to “debunk” the story. He justified the ludicrous award by arguing that the coffee was so hot to “melt the plaintiff’s pantyhose to her skin.” Well, that is rather hot coffee, if true, since the melting point of nylon is hundreds of degrees higher than the boiling point for coffee, so I would have no problem holding McDonald’s liable if they were selling coffee at a temperature where it ceases to be liquid or solid.
Of course, it’s not true that the coffee was so hot to melt pantyhose (and Stella Liebeck was wearing cotton sweatpants), but one looks forward to Jonathan Turley decrying this urban legend that’s distorting the debate over legal reform.
Apropos of nothing in particular:
A would-be carjacker got a different kind of jolt from his intended victim’s morning cup of coffee, authorities said.
But the driver—who had just bought a cup of hot coffee—slammed the car door into the carjacker’s legs, threw the coffee at his neck and face and wrestled him to the ground, Hughes said.
(AP/CNN, Oct. 21) (tip of the Overlawyered cap to A.T.). The AP, of course, must be mistaken: the trial lawyers claim that everyone lowered the temperature of their coffee to a “lower industry standard” to make consumers safer in response to the Liebeck suit, and lukewarm coffee couldn’t possibly be used against a carjacker—unless ATLA wasn’t telling the truth, but that can’t possibly be, right?
Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.
The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).
Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.
But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.
You may recall that defenders of the infamous Stella Liebeck McDonald’s coffee case verdict argue that the suit was justified because her beverage was unusually hot, that no one else serves beverages capable of second- and third-degree burns, and that the suit was justified by the change in the restaurant industry to lower temperature of beverages.
None of these urban legends, repeated uncritically by Professor Jonathan Turley and the LA Times (and, sadly, snopes.com, which should know better), are true, and we have another datapoint: Paige Simmons, of St. Jacob, Illinois, is suing Java Junction and the Sweetheart Cup Co. over an allegedly defective cup that spilled hot chocolate on her when she was 6, causing second- and third-degree burns. In a refreshing blow for common sense, the Simmonses’ attorney, Ron Motil, emphasizes that he’s not suing over the obviously-hot temperature of the “chocolate steamer”, but over the cup. (Brian Brueggemann, “Family sues over girl’s burns from hot chocolate”, Belleville News-Democrat, Sep. 8).
One of the great urban legends perpetuated by the trial bar is that the ludicrous McDonald’s coffee case (Dec. 10, 2003; Aug. 3, 2004; Aug. 4, 2004, etc.) was somehow worthwhile because McDonald’s “lowered the temperature of its coffee” after it lost the case over Stella Liebeck’s burns. This claim is repeated by hundreds and perhaps thousands of web pages, and at least one tort-law casebook used in law schools.
Not so. Restaurants, much to the relief of consumers, continue to serve coffee hotter than the 140 degrees Stella Liebeck’s attorney thought should be the maximum limit. And, one time in several million, a customer is burnt by the coffee, and some fraction of those result in lawsuits. Latest examples: Rachel Wehrenberg of Florida is suing William F. Ganshirt and McDonald’s for second-degree burns suffered by her daughter when Ganshirt spilled his coffee on six-year-old Victoria’s back after the two collided; and Russian Olga Kuznetsova is suing McDonald’s for second-degree burns she suffered when she spilled coffee on herself while trying to exit the restaurant. The Naples News uncritically repeats attorney Debi Chalik’s false assertion that “industry standard” is “140 degrees.” The Russian lawsuit is over whether the restaurant’s door caused the spill; there does not appear to be a claim that the coffee was unreasonably hot just because it caused burns. Interestingly, there appear to be delays in the Russian case because the expert witness was found to have had contact with the plaintiff’s attorney, a common practice here that is an apparent nyet-nyet in Russia. (Kristen Zambo, “Mother sues McDonald’s claiming coffee burned daughter”, Bonita Daily News, Aug. 6; “Russian woman claims million for a cup of McDonald’s coffee”, Pravda (English), Aug. 9; Andrey Kolesnikov, “Not Fraud, Just Clumsiness”, Kommersant, Jul. 28).
Professor Bernstein (also here) and the “Curmudgeonly Clerk” trade thoughts on the infamous McDonald’s coffee case ($2.9 million verdict for Ms. Stella Liebeck, who spilled a 49-cent coffee on herself), with the Curmudgeonly Clerk’s comments demonstrating how thoroughly the plaintiffs’ bar has infiltrated societal thinking.
The Clerk justifies the verdict on a couple of grounds: McDonald’s had 700 previous complaints; and Ms. Liebeck suffered horrific injuries.
To say that there were 700 previous complaints of burns (ranging from scalds to real injuries) from McDonald’s coffee begs the question. After all, 700 is just the numerator. What’s the denominator? The answer is in the tens of billions. A product that hurts one in twenty-four million people is not “unreasonably dangerous”, especially when the vast majority of the 700 incidents were not the sort of grievous injuries Ms. Liebeck had. (McDonald’s had settled previous cases, but the cases were incidents where the McDonald’s employees had spilled the coffee.) However, the jury took the 1-in-24 million statistic not as evidence that McDonald’s coffee was not dangerous, but as evidence that McDonald’s cared more about statistics than people — when in fact the statistic should have been used to throw the case out.
That Ms. Liebeck was surely serious hurt doesn’t change the underlying problem with the lawsuit: Ms. Liebeck was hurt because she spilled coffee on herself. If (as all fast-food restaurants do now) McDonald’s had the obvious statement “Coffee is hot and can burn you” on the cup (a juror later complained that McDonald’s warning was too small), would that have prevented her injuries? True: McDonald’s could have served luke-warm coffee or even iced coffee. But at the end of the day, the proximate cause of Ms. Liebeck’s injuries, as awful as they were, was Ms. Liebeck.
The argument for liability is that McDonald’s chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here’s a question: the reason Ms. Liebeck’s injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck’s sweatpants had been made out of Gore-Tex or some other liquid-resistant material, she never would have been hurt. What’s the principle of tort law that holds McDonald’s liable, but not the clothing manufacturer?