Saving the Cheeseburger

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The House of Representatives is expected to vote this week on the Personal Responsibility in Food Consumption Act, which is aimed at squashing litigation blaming restaurants for making their customers fat. The bill would shield food manufacturers, distributors, and sellers from lawsuits "relating to consumption of food or non-alcoholic beverage products unless the plaintiff proves that, at the time of sale, the product was not in compliance with applicable statutory and regulatory requirements."

I have mixed feelings about this sort of legislation. Given the precedent set by the state-backed tobacco lawsuits, which in effect imposed a nationwide tax and nationwide regulations without congressional approval, there is a case to be made for federal action. Advocates of the Protection of Lawful Commerce in Arms Act, recently defeated by hostile amendments, offer a similar argument: Unless Congress shields gun manufacturers from lawsuits blaming them for criminal use of their products, state courts will usurp its authority to regulate interstate commerce (as well as the authority of state legislatures to set their own gun control policies).

At the same time, it's disconcerting to see Congress instructing state courts to dismiss patently absurd lawsuits. I worry that it's not really necessary. I worry more that it is.

NEXT: Fair Use Will Be Eaten First

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  1. “I worry that it’s not really necessary. I worry more that it is.

    AMEN

  2. The coffee that spilled when the lid fell off onto the passenger in the car as it sat waiting at the drivethrough was served at such a high temperature that is seared her clothing into her skin, requiring extensive skin grafts, inpatient treatment at a hospital, and rehabilitation. Did Ruch not mention that part, cdunlea?

    I’m glad McDonald’s was held responsible for the dangerous way it ran its business, I’m glad they changed their business practices, and I’m glad there aren’t more people being maimed like that.

  3. In other words, Reason’s position is that federal interference to protect corporations from consumers is good, federal interference to protect consumers from corporations bad. Makes sense to me.

  4. I’m not sure what you want from McD’s, joe. I mean, if I were to be smoking in my car and drop the cig on my lap and catch my pants on fire, should I be allowed to sue the cigarette maker?

    What about if I buy a thick shake, which is hard to suck through a straw. Then I suck really hard while barreling down the freeway and almost pass out from lack of oxygen and smash into another car. Is it my fault or McD’s fault for making a shake too thick to easily suck up a straw?

    Just where do you draw the line between human stupidity and knowingly dangerous behavior by a company? Last I heard it was common knowledge that coffee is served hot, and that putting a drink in your lap while driving vastly increases the chances that the drink will spill onto your lap.

  5. Would “Loser Pays” be a compromise? I doubt the ATLA will compromise with anyone except other competing trial lawyers lobbyists, but wouldn’t Loser Pays effectively stave off many irrational lawsuits?

    However, I’d prefer that the plaintiff and attorneys were forced to balance hot coffee with no lids on their already miniscule arguments.

  6. Personal Responsibility in Food Consumption Act

    I love the name. It makes a simple observation seem as though it had to be contrived by careful rhetoric.

    The freedom of self-determination requires accountability for the consequences of one’s decisions. Unlike cancer from asbestos or a bullet from a gun, both of which are a result of someone else’s negligence or lack of character, a person has ample warning of approaching morbid obesity (the 50-lb line where being fat is harmful). When you cannot see your toes it is probably time to adjust your lifestyle.

    The Physicians Committee for Responsible Medicine complains the bill “absolves the food industry from any legal liability for its contributing role in the nation’s obesity epidemic.”

    Obese individuals and the lack of restraint they exhibit for themselves and their children have the greatest culpability in the nation’s obesity epidemic.

  7. Please. The coffee was not boiling when it was served to her, so it was certainly below 212 degrees. Are you saying that clothing really “sears into skin” at 180-190 degrees? The melting/deterioration point for all fabrics is considerably higher than that.

    Listen: I get hot coffee every day when I drive to work. I accept the risk that if I try drinking it while driving I may spill it on myself. I may even get hurt along with stained. But nobody’s forcing me to buy it, or drive while I drink it, and I have every expectation that my coffee will be hot. I knew coffee should be served hot in grade school. When people take reckless actions and disregard common sense they should not be allowed to sue the deepest pocket they can find. Claiming “the devil made me do it” in regards to Big Macs is even more egregious and infantile.

    Or maybe I should sue Exxon if I throw gasoline into my fireplace and burn my house down? They never explicitly told me that mighr happen.

  8. anon,
    Way to let your imagination get the best of you. I don’t recall seeing the memo that stated Jacob Sullum speaks for reason at large. Nor does he really seem to be endorsing federal action. In fact he states: “I have mixed feelings about this sort of legislation.”

    The feeling I got from his remarks, and I feel much the same way, is that something is certainly wrong with our system. It allows companies to be sued (almost) out of existence by people who have no legitimate claim for damage. People are bringing up lawsuits to get money because they don’t want to take responsibility for their own actions, and many politicians perpetuate this idea that people are not responsible for themselves.

    Personally though I don’t think this kind of protective legislation will ever resolve the issues. Our politicians simply cannot be trusted to get any legislation right at this point, so I think it best that they just don’t pass anything. In the end I think Don had it right. We need to reform our entire tort system.

  9. Joe:

    The coffee was spilled after the woman placed the cup between her legs and removed the lid to add cream and sugar. The coffee did indeed scald her genitals severely requiring some extensive rehabilitation. However, the coffee was brewed at the temperature recommended by almost all coffee afficionados I’ve ever heard from.

  10. Starbucks murdered a few of my tastebuds this morning with their hot coffee.

    /end ATLA spokesman

    I bought coffee from Starbucks and poured it into my own mouth. It was hot and burned my tongue. Now it kind of stings but the dead tastebuds will grow back. I will buy another cup tomorrow.

    /end Un-Common Sense

  11. The coffee that spilled when the lid fell off onto the passenger in the car as it sat waiting at the drivethrough was served at such a high temperature that is seared her clothing into her skin, requiring extensive skin grafts, inpatient treatment at a hospital, and rehabilitation.

    Thank you for sharing the shocking news that hot coffee is hot.

    The stupid bitch stuck a cup of hot coffee between her thighs and it poured onto her crotch. The coffee was not served “too hot”; it was served *below* the preferred coffee-shop coffee temperature. Yes, McDonalds did not have a sign outside the drive-thru window saying “Don’t pour this on your lap, you stupid cunt”, but I still find it awfully hard to fault them. All I know is that by the time I get a chance to actually drink their coffee — ie, NOT WHILE I’M DRIVING A CAR — it’s cold, because thanks to this ignorant whore they only serve lukewarm coffee now.

  12. seared her clothing into her skin

    First, coffee cannot get that hot at STP. But whatever, that was not exactly a frivolous lawsuit (although I didn’t agree with it), and it was definitely not about a consumer making conscious choices to super size every day for three years and then finally noticing that he broke his bathroom scale.

  13. GoonFood: How open do you think Lawyers are to the question of “What do you think about making less money?”?

    That’s like Ford’s labor negotiator opening colletive bargaining talks with “How about a paycut this time?”.

    Most of the Democratic candidates will stall stifle any legislation the ATLA opposes, especially personal responsiblity bills or Tort Reform. The Gun bill that just died was a pretty awesome showcase of the power of the trial lawyers. Both their riders were supported effectively killing the bill so 90 Senators could say they voted against renewing the assault weapons ban and say they were against limiting supply chain civil responsibility for unlawful acts of an individual.

  14. With regards to poor Stella and the hot cup of joe. According to my data (could be suspect since it comes from law school) the coffee she purchased was 195 degrees farenheit. Apparently this temperature is hot enough to cause 3rd degree burns. Stella was not driving, her grandson or nephew was, and the vehicle was parked as she placed the cup between her thighs (still a bad idea but many people still do this) to add cream and sugar. The cup spilled and caused 3rd degree burns to her groin region (it is extremely sensitive) which resulted in skin grafts etc. McDonald’s keeps its coffee at 195 degrees because the coffee tastes better. But it had been warned on several occasions to keep it between 160-180 degrees, which at worst would cause second degree burns.

    Personally I have no patience for these types of cases as most people want their coffee to be hot, including myself. But the claim is that McDonald’s was asked to pay Stella’s reasonable medical expenses and they refused. As a result Stella took them to court and eventually there was an out of court settlement, presumably because McDonald’s was going to loose in a big way.

    But as for this act, it is a sad sad day that the government feels compelled to legislate where people should be required to take personal responsibility for their choices. That includes companies that make bad decisions. If the courts would refrain from legislating, this wouldn’t even be an issue.

  15. Thank you, Rebekah. There’s an old saying, “When you have the facts on your side, pound the facts. When you have the law on your side, pound the law. When you have neither, pound the table.”

    Goonfood, cd, Dan, some table maker’s daughter is going to Harvard because of you.

    What do I want from McDonald’s, Goon? How about, products that don’t put you in the hospital when used as directed, or at least a shred of personal responsibility when they do.

    But I guess that last part is only for us little people.

  16. I say make it a misdemeanor to
    murder the filer of a frivolous lawsuit.

  17. Tort reform is the obvious answer, and has been for some time. But what are the chances that our lawyer-legislators will move down that road?

    Slim to none, I’m afraid.

  18. Products that don’t put you in the hospital when used as directed?

    Hmmm, my memory may not be what it used to be, but I don’t recall the directions saying, “pour coffee liberally into genitals.”

  19. Questions for tort-reformers:

    1. Despite the hyperbole, I have yet to see any facts here about the percentage of lawsuits deemed “frivolous” (by who?) and the cost to society. Please provide more info, not just anecdotal evidence.

    2. The current tort system assigns all liability on the product manufacturer because, without perfect information between producers and consumers, this produces close to an efficient outcome. There is no truly efficient tort system. What exactly are tort-reformers proposing and why? A cap on damages? Will they be arbitrary caps or reasonable estimates of actual damages?

    Lawyers and/or anybody familiar with Richard Posner/Ronald Coase please pipe up.

  20. it had been warned on several occasions to keep it between 160-180 degrees, which at worst would cause second degree burns.

    So had McD’s kept their coffee at 180 degrees or lower, then she would have burned herself and had no recourse at all for the medical attention required for her second degree burns. But 15 degrees higher, and McDonald’s is wholly legally responsible for her being burned at all, where factually they are only responsible for her having third degree and not second degree burns. Interesting dichotomy.

    products that don’t put you in the hospital when used as directed

    How is one directed to use coffee, etc? If used as directed, it goes something like, lift coffee, drink. If you put hot coffee between your legs, take off the lid, and then try to sugar and cream it in a moving vehicle, that’s not use as directed. Do you blame Pandora, or the Box?

  21. this produces close to an efficient outcome

    Obviously. Malpractice insurance for physicians has never been more affordable. 😐

  22. Okay, okay, there are PROBLEMS with the legal system. But as the book Libertarianism In One Lesson taught me, utopia is NOT an option!!! So WHAT kind of tort reform are you proposing?? And what makes you so sure that the cure won’t be worse than the disease???

  23. “If you put hot coffee between your legs, take off the lid, and then try to sugar and cream it in a moving vehicle, that’s not use as directed.”

    I think there’s a reasonable expectation on McDonald’s part that people who are given a cup of coffee with a lid, two creamers, two packets of sugar, and stirrer through a drive through window are going to fix their coffee in the car. In a larger sense, they have a reasonable expectation that people who are handed coffee while in their car might spill it – especially since they had been repeatedly warned that this was happening, and that people were getting hurt. Is holding your coffee between your legs while you stir it an appropriate use of a coffee handed to you through a drivethrough window? I’d have to say yes. Is spilling coffee on yourself while in the car a forseeable occurance? Of course it is.

    If you’re going to give people coffees through a drive through window, you should make sure it isn’t going to burn them so badly that they need skin grafts.

    Duh.

  24. joe,

    You haven’t addressed rst’s point that based on entirely on your own information, McDonald’s should only be responsible for the difference in harm between a 2nd and 3rd degree burn. I think that argument would have made sense to me had I been on the jury. Maybe I would have added something for the woman’s time, effort and expenses for having to bring the suit.

  25. “Obviously. Malpractice insurance for physicians has never been more affordable. :-|”

    Very true. But on a serious note, efficient does not neccesarily mean less expensive. Besides, medical malpractice is another matter entirely, as our whole medical system is so fucked-up and rank with inefficiencies that perhaps the rules of economics no longer apply to the health care system.

  26. Suppose that Stella was one of those people who liked her coffee black and unsweetened, so instead of opening the cup and burning her leg she simply swallowed a mouthful and caused severe burns in her mouth and throat? Would people THEN agree that McDonald’s was liable, in that they shouldn’t sell an edible substance that is too hot for safe human consumption?

    I hate stupid lawsuits but I don’t think this was one of them.

  27. re tort reform:

    1) “Loser pays” is one option. Lawyers who are so ready to collect in victory should be prepared to pay in defeat. Which leads me to

    2) Common sense. Give the judge absolute discretion to throw out obviously ridiculous cases, and

    3) The power to order neutering of repeat offenders, resulting in

    4) Fewer lawyers reproducing.

    Victory for all!

  28. are going to fix their coffee in the car

    So you’re saying that McDonald’s should be legally liable for people who are too dumb to use a cup holder, or put the coffee on the floor between their feet? Both are vastly safer alternatives, and a reasonable expectation on a person who drinks coffee in a car, like a hands-free is a reasonable expectation on a person who talks on their cell phone in a car. She could also have tried to balance the cup between her tits. Would McDonald’s still have been liable? Putting hot coffee between your legs jeopardizes your genitalia even if the coffee is 180 degrees. That the coffee was 195 degrees made it more dangerous, but doing it in the first place was just plain stupid.

    Duh.

    Is spilling coffee on yourself while in the car a forseeable occurance? Of course it is.

    Getting into a car accident is a forseeable consequence of buying a car. The dealer probably doesn’t warn you of this possibility. What culpability does the dealer have however when you wrap your car around a tree? (“He told me I could do 0-60 in 6.1, and I tried it, and this is what happened, so it’s all the dealer’s fault”)

  29. fyodor, the suffering from a third degree burn is much more intense, the recovery period much longer, the treatment required much more intrusive and unpleasant, the permanent effects more significant…treating a second degree burn involves some gauze and some ointment, and probably some aspirin for a day or two (depending on the size of the wound). This woman required surgery and hospitalization.

    The difference between a second and third degree burn is not trifling, nor is the cost associated with it. I think rst’s point is less than meets the eye.

  30. rst, McDonald’s would have been just as liable if she had been hospitalized for severe burns to her hands, feet, belly, or shoulder blade.

    “Getting into a car accident is a forseeable consequence of buying a car.” And you should expect that, if this happens, you will suffer the injuries consistent with a car crash. If a certain car were to be designed to impale the driver on a 3 foot stake that shoots out of the steering wheel when the front bumper hits the tree, then yes, the dealer and manufacturer would be liable for the impalement.

    McDonald’s sold this woman a product that was much more dangerous than she had reason to believe, and did it with full knowledge that their practices were hurting people.

  31. When I was a little boy, my Mom would tell me to wait until my soup or hot cocoa had cooled a bit before I started in on it. Didn’t the nice lady who bought the coffee learn that from her mommy?

    joe seems to think that there is no such thing as “common knowledge” that a merchant can reasonably expect his customer to have. Let’s just send a Shuttle up to hang a banner in orbit, readable from anywhere down here:

    WARNING: Life on Earth can be hazardous to your health!

    Kevin

  32. I think the logical thing is that there was some degree of shared responsibility between McD’s and the woman. Spilling coffee requires a helluva lot less irresponsibility than driving your car into a tree, but obviously it’s not how the product was meant to be used.

    The larger question is: if we (or at least some of us) agree the decision may have gone farther for the plaintiff that we think it should have, is this typical and endemic? Or are a handful of anecdotes worth setting arbitrary limits interfering with the freedom of contract, with results that will likely be both good and bad, the proportions of which we can only speculate on?

  33. fyodor: Indeed, the jury held that the woman was partially to blame, and reduced the reward accordingly.

  34. This woman required surgery and hospitalization.

    A skin graft is a simple outpatient procedure. It’s surgery like stitching up a deep gash is surgery.

    McDonald’s would have been just as liable if she had been hospitalized for severe burns to her hands, feet, belly, or shoulder blade.

    So really, what it boils down to for you is not that she was an idiot, or that she failed to take the alternatives, one of which was plainly available to her, the other only if she had cup holders, but that the coffee in the pot was 195 and not 180 degrees. Moreover, the fact that the coffee in the pot was 195 degrees meant McD’s was wholly liable for her injury, but had the coffee in the pot been 180 degrees, McD’s would not have been liable at all. Regardless of the temperature of the coffee in the cup, distinct (due to physics, dT=k(T-Tambient)) from the temperature of the coffee still in the pot, it was her fault that it was spilled, her fault that it was located where it was, and her fault that she incurred the injuries she did. She could have spilled it instead on her shoes, or all over her dashboard. She incurred the injuries from her own negligence. That the coffee was hotter made the injuries worse, but she still caused them.

  35. According to uncontested evidence introduced at the trial, McDonald’s knew of 700 previous reports of injury resulting from their coffee. This fact seemed to seriously sway the jury.

    The jury ignored, however, that McDonald’s has sold tens of billions of cups of coffee. As determined at trial, the risk of being scalded by a cup of McDonald’s coffee was 1 in 24,000,000 (24 million).

    That means each time a person had a cup of irresponsibly hot McDonald’s coffee they stood a 0.00000417% chance of scalding. Phrased another way it means that a cup of McCoffee is 99.99999582 percent safe. (Assuming I counted all the damn zeros)

    There is no such thing as a “safe” product. There are only products with acceptable degrees of risk. If 99.9999582% safe, isn’t acceptable, what number is?

  36. Shannon:

    100%

    Duh!

    Yours truly,
    The Nanny State

  37. On a more serious note, what’s the coffee woman’s name and e-mail address? If she doesn’t have it coming, who does?

    If not now, when?

  38. On the issue of this legislation:

    Normally I’m against legislation that favors business over customers. Normally it smacks of crony capitalism to me.

    But the attempted fast food lawsuits, much like tobacco lawsuits, go way too far. These are truly ridiculous suits. I have ZERO problem with pre-empting them.

    Simple physics says that if you burn as many calories as you consumer you won’t gain weight. It isn’t rocket science.

    As to the hot coffee: I’ve heard all the arguments against McDonald’s in that case, and I have a little bit of sympathy. Maybe, just maybe, if they hadn’t ordered the $10 million in damages I’d have more sympathy for her. It’s one thing to say “I got hurt because of you, now fix me up so I can go back to living my life.” It’s another thing to say “I got hurt because of you, now make me wealthy.”

  39. I should add that I have no problem with giving people large amounts of damages if they’re permanently disabled. The problem is that our system encourages people with temporary injuries to seek huge damages.

    I know a person who was injured. Let’s just stipulate, for the sake of argument, that it was the other party’s fault, rather than rehash every detail of the case. She got into a dispute with the insurance company over how much of her recovery they would pay for. Let’s stipulate, for the sake of argument, that my relative was in the right.

    At first law firms were eager to talk to my relative. Then they found out that she only wanted 2 things: A few more months of physical therapy, and a few months’ salary while she recovered. They were disappointed that she wasn’t going to claim a permanent disability and demand some huge payout.

    So, if you are a conscientious person who gets injured and wants to get back on your feet, well, that isn’t very lucrative for trial lawyers. I mean, physical therapy is expensive, but not expensive enough to net the lawyer a big fee. And a few months’ salary usually won’t net the lawyer much of a commission.

    But if you’re prepared to say “This minor injury will prevent me from working ever again, so I need millions of dollars”, then the trial lawyers will lavish attention on you.

    Yes, yes, I realize that the lawyers are businessmen with the right to seek out profitable clients and steer clear of unprofitable cases. And I’m not suggesting that trial lawyers should be forced to represent unprofitable clients. And I do realize that some people really are permanently disabled as a result of somebody else’s irresponsible actions, and those people do indeed deserve a large settlement. I just think it’s unfortunate that there aren’t manyh options for a person who only wants enough compensation to recover and turn to work.

  40. It’s a matter of degree. All hot coffee becomes not-hot after a few minutes, but we finish it anyway.

    All cold beer becomes less cold after a few minutes. Likewise, we finish it.

    I hereby propose legislation that mandates warm coffee and sorta-cool beer.

    Everyone wins!

    Regards,
    Your Congressman/woman/thing

  41. But the claim is that McDonald’s was asked to pay Stella’s reasonable medical expenses and they refused.

    By “reasonable”, I assume you mean “since she’s the dumb bitch who poured coffee on her lap, she should be the one paying the medical expenses”.

  42. I asked above if anyone was an economist or lawyer, but apparently not. So here is an excerpt from a textbook on torts..

    http://www.law.berkeley.edu/institutes/law_econ/216%20chpt8.pdf

    It seems one could blather on and on about anecdotal cases, McD’s coffee, and the “nanny state” (nanny state??? Torts arise out of imperfect information and unclear property rights between private parties – it has nothing to do with the state, other than that the judiciary must assign clear property rights in a tort case), but it would help to understand the theory of torts first.

  43. There is no such thing as a “safe” product. There are only products with acceptable degrees of risk. If 99.9999582% safe, isn’t acceptable, what number is?

    The point isn’t that the number isn’t acceptable. It’s that, if you’re going to take a product to market that’s, say, 94% sfe, you have to be willing, as a cost of doing business, to pay for the 6% of users that get injured. And if you take one to market that’s 99.0000582% safe, you have to be willing to pay for the 0.9999418% that get injured. The degree of safety of one’s product shouldn’t inure them from covering the costs of the people who do get injured.

  44. Phil-

    This assume’s that the seller will be responsible for buyers injured by the product, rather than buyers being responsible for their decision to use the product.

    To me, a 100% buyer-beware policy makes as little sense as a 100% seller-beware policy. Both are equal parties to the transaction, and it’s not a priori obvious where to assign risk. If, as part of the transaction, they sign a contract clearly delegating risk, that’s one thing. But most sales don’t include a contract specifying who will bear the burden of risk. In the absence of a contract clearly assigning the rights and responsibilities associated with risk, via legal precedents and legislation we have some “default” settings about who will bear risk.

    Some of these default settings are clearly out of whack, but the basic concept of having some sort of default is a sound one. Some libertoids get all out of whack over that, but what else are we supposed to do if two people have a dispute over who bears a responsibility that neither one of them explicitly agreed to accept? We need some sort of default. The only question is what it should be.

    My personal preference is caveat idiot: Let the idiot beware.

  45. Maybe what we really need to do is overhaul our basic tort system. It doesn’t make sense to provide a band-aid for each targeted industry.

  46. Can’t have your cake and eat it too, Jacob. Either some guideline (as in a law) is set forth nationally or we leave it up to each state, and each state’s left- or right-wing judiciary. Do we really want to chance that out of fifty state judiciaries, not one of them will find evidence of a prima facie case against Burger King? Or worse yet, leave it up to the gullibility of the jury pool, one-third of whom (statistically) is probably overweight? Remember McDonald’s and the cup of hot coffee before you dismiss this legislation.

    Government, at its best, serves to enforce personal liberties and encourage personal responsibility.

  47. While I entirely agree that it’s disconcerting to see the federal government taking even more power from the states, what goes well beyond that in my mind is that we now genuinely need a law that essentially says that people can’t be punished unless they’ve done something illegal.

  48. “Jurors take their cues from the “nanny state” and the culture in general”

    No they don’t – they take their cues from the judge who sets the parameters of decision.

    “which in many instances regards personal responsibility and common sense as old fashioned and irrelevant”

    Bullshit – this is hyperbole, not a logical argument.

    Name another case, besides the coffee case, where you think a plantiff was awared a huge sum despite the fact that the plantiff was 100% responsible for their injuries and the defendant was 100% blameless.

  49. I don’t have the citation in front of me, but I recall a case where a guy broke into a home to rob it. In the darkened kitchen he somehow got injured by a knife lying on the counter. The homeowner was held liable.

    I know there have been other such cases, I just wish I had a citation in front of me. Can anybody help?

  50. dlc –

    Jurors take their cues from the “nanny state” and the culture in general, which in many instances regards personal responsibility and common sense as old fashioned and irrelevant.

  51. The point isn’t that the number isn’t acceptable. It’s that, if you’re going to take a product to market that’s, say, 94% sfe, you have to be willing, as a cost of doing business, to pay for the 6% of users that get injured. And if you take one to market that’s 99.0000582% safe, you have to be willing to pay for the 0.9999418% that get injured. The degree of safety of one’s product shouldn’t inure them from covering the costs of the people who do get injured.

    Your logic is flawed. A manufacturer needn’t pay just because their product is not 100% safe. It’s not merely “the cost of business”. “Safety” is not so one-dimensional, and that is what we’re finding out right now. Where do we draw the line? I would say, between “personal responsibility” and “malfunctioning product/service”. For example, if you’re driving a Buick, and you’re talking on your cell and eating a sandwich, and you crash, then, Buick is not liable for your safety (unless they have made certain binding promises about crash safety per se). However, if you’re driving a Buick, and a malfunctioning tie rod causes your car, at no fault of your own, to veer off the road and hit a tree, then Buick should be held liable for your safety. Do you see the difference? You have a reasonable expectation that your car perform in a safe manner; you do not have a reasonable expectation that you are always 100% safe.

    The same logic can be taken to fast food. If Burger King tells you that their burger has 50g of fat, and you eat one every day and get fat, then they should not be held liable. But if Burger King tells you their burger has 10g of fat, but it actually has 50g of fat, then they may be held liable, under false advertising laws. Or, along the same lines, if their Burger has glass shards in it, then they should be held liable.

    The point is, nothing is 100% safe. But the consumer is not ENTITLED to 100% safety. What law, what basic principle of the market, says, “consumers are entitled to 100% safety, and eveything less is the liability of the manufacturer”? There is no such law. The legal precedent has to do with “gross negligence” on the part of the provider. It is, in many ways, subjective to the court. Obviously, the manufacturer/provider is bound to provide whatever promises they make. If a manufacturer (foolishly) says “100% safe!” on the packaging, then they are bound to that promise. But there is no reasonable expectation, on the part of the consumer, that they are entitled to 100% safety/reliability. Nor is there any reasonable requirement, on the part of the provider, that they compensate for any lapse in safety below 100%, unless it is shown that it was a breach of contractual obligation, or gross negligence. Last time I checked, Burger King wasn’t making contractual promises that their burgers were healthy. There are a lot of things in this world that are bad for you. You take a risk when you use/consume them. Driving an automobile is one of the most dangerous activities we engage in. But, most of that risk is being taken by those who engage in an activity, not by those who provide it.

  52. kevrob, it is not common knowledge that coffee is hot enough to give you third degree burns, severe enough to require skin grafts and hospitalization.

    rst, “She incurred the injuries from her own negligence. That the coffee was hotter made the injuries worse, but she still caused them.” Yes, sort of like my impalement feature makes the injuries from a car accident worse.

    And yes, McDonald’s liability comes from the temperature at which the coffee was served. If it had been just hot enough for the plaintiff to say ow, mop in up with some napkins, and go on with her life, McDonald’s would have no liability.

    Scalding Coffee, lol.

  53. God, this woman gets all the sympathy.

    Will no one think of what it was like for me being poured into that old woman’s vagina?

    Where the hell is MY settlement?!!!

  54. I have only anectdotal evidence to give, but two examples come to mind. Why do we have idiot switches on lawn mowers? Because some clown tried to use his as a hedge clipper and lost his fingers. Case was for a “defective” product. Another case that comes to mind has an impact on private aircraft. Why does a single-engine aircraft cost so much. Because cases have decided that the manufacturer is responsible for that plane forever. The case in question was where a pilot flew his plane into a blind canyon and inpacted the wall at about 300 feet AGL and about 150 knots. The case hinged on “shoulder belts”. Not sure what they would have done but now insurance for manu. on a private plane is about half of the purchase price.

  55. Some of the best stories about this sort of thing are on http://www.overlawyered.com , BTW.

    Coffee tastes best when brewed at a ~175-200 degree F temperature and, prior to the infamous lawsuit, the majority of McD’s morning customers preferred to have their java served on the hot side. Of course, few of the regulars were going to squeeze a polystyrene or paper cup down near their genitals. Other than the temperature, which may well be a question of fact determined by the trial (see this archived WSJ story:
    http://www.vanfirm.com/mcdonalds-coffee-lawsuit.htm ) there is the question of “compensatory negligence.” Perhaps the coffee was served too hot and the customer did something stupid, such as park the Vessel of Doom next to her lady parts…in a car..that could lurch forward. Not smart.

    As the article points out, the reward was reduced by the court, and further knocked down to an undisclosed sum by the parties’ lawyers. Perhaps some rough justice was done. But the tort system is certainly broken. Just consider the way the plaintiff’s bar goes forum-shopping for jurisdictions where the jury-pool is less educated than the national average, poorer, less likely to speak English as a first language, or likely to punish foreign or out-of-state defendant companies. This is not a search for truth using an adversarial process. It is an attempt to rig a game before it is even played. To make it worse, these millionaire lawyers buy a Senate seat and make passing overdue reforms impossible.

  56. This land is in urgent need of more lawyers.

    Look at it: Huge awards of punitive damages make trial lawyers (and even some plaintiffs) pretty rich, so they can buy mansions, and Ferraris, and big SUVs, and real big diamonds, and Piaget watches, and Hermes purses, and Cartier necklaces for their cats & dogs, and whatnot, and surely, all this is going to increase the BIP, and therefore the whole country gets richer and richer, and more clever kids are flocking to law school and we have more lawyers tomorrow and even more lawyers in ten years, and of course they will make big money too — Congress will see to that by ejaculating more and more complex and indigestible legislation, always a great make-work program for lawyers.

    Thus the BIP increase will be even higher and food will be the new tobacco and politicians will be happy and reparations for slavery will follow post-haste to make black lawyers happy too (we can’t have that they feel slighted, no?)

    And as the BIP grows and never stops growing the lawyers thrive and prosper and of course the whole fucking country thrives and prospers too, until everybody’s a lawyer or a plaintiff.

    But who remains to be sued then?

  57. Jim,

    That’s funny you mention the lawsuit with the lawnmower. The best thing about that case is that it NEVER happened. Some insurance company made up the story in an attempt to fuel tort reform initiatives. It was later found that the facts were completely fabricated, by people like yourself continue to spread it like its gospel.

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