Letters

From the August/September 1999 issue

(Page 4 of 4)

Stung by the public's predominantly negative reactions to the McDonald's case, lawyers have expended vast amounts of energy trying to turn those reactions around, claiming that the public has been fooled and would certainly take their side if it knew the true facts of the case. Their problem in trying to swing this, it seems to me, is that since day one virtually all the cards have been face up on the table.

Everyone knows that water boils at the same temperature at a restaurant as when you put the teakettle on the stove for your own family. Everyone old enough to have drunk much take-out coffee knows why big chains prefer to hold it at a higher temperature, which has relatively little to do with saving money (lower holding temperatures would in fact save electricity) and a great deal to do with the preferences of take-out buyers themselves. And everyone with even a slight exposure to statistics finds it unsurprising that when a hot liquid is sold so many times a year there will be, despite reasonable precautions, people who spill it, and that some of the resulting injuries will find their way into the hands of lawyers.

Few were shocked, then, to learn that McDonald's had faced a steady trickle of such claims for many years, which (until it got unlucky in the New Mexico case) it had fought with much success by invoking the time-honored common law defense of assumption of risk. It is one of the tort system's more appalling vices that this very record of having zealously and successfully defended the blamelessness of its conduct should be turned into a reason for extra punishment. The message comes across loud and clear: Don't try to resist.

As for the efforts at sarcasm about my right to go on filling a thermos at home, I suspect they're likely to backfire among REASON's liberty-loving readers. Yes, I'm still allowed to boil water at home; but I can't pay other people to re-create the same beverage while on the road unless I simultaneously buy from them an insurance contract covering some of the injuries that might result from the purchase.

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