When the “hot coffee” case hit the headlines (woman sues McDonald’s for hot coffee that she spilled on herself and suffered burns) I was incredulous and skeptical. Then, in my Torts class at law school, we discussed the case and our professor explained all the reasons why it was a completely legitimate case and the media had it all wrong.
Now, I still believe the media had it all wrong (because I think they generally always do), but there is a very interesting article at Overlawyered discussing the various “urban legends” engendered in the Hot Coffee case. The article also mentions that “some” law school profs are teaching the case as a legitimate case, and notes that those professors are drawing criticism for doing so.
Was it a legit case? Of course, you should decide for yourself… but especially if you were in my torts class with me, this deserves a good look. I, for one, remain skeptical. (Then again, I’m defense bar, and I’d have been happy to represent Mickey D’s.)
Urban legends and Stella Liebeck and the McDonald’s coffee case
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.
Kevin Drum: only the “most extreme” support the position of “trial lawyers who sue McDonalds over hot coffee”
False: The main trial-lawyers lobby, the Association of Trial Lawyers of America, publishes an Orwellian “fact-sheet” defending the verdict; many law professors incorrectly teach their students that it was a legitimate case. Indeed, Drum is attacked by several commenters for taking this position.
Commenter cmdicely: the industry standard was to serve at a lower temperature
False: The National Coffee Association of the USA recommends serving at 180-190 degrees; another article suggests industry standard is 160 to 185 degrees.
According to a Sep. 1, 1994 Wall Street Journal interview with Reed Morgan, Liebeck’s attorney, he measured the temperature at 18 restaurants and 20 McDonald’s, and “McDonald’s was responsible for nine of the twelve highest temperature readings.” Which means that, even before one accounts for conscious or unconscious bias in the measurements, at least three, and probably more (what about the other eleven McDonald’s?), restaurants were serving coffee at a higher temperature. And Starbucks serves at a higher temperature today, and faces lawsuits over third-degree burns as a result (Jan. 2, 2004).
Commenter Carl: I presume hundreds, if not thousands of people have been saved from severe burns from unreasonably hot coffee.
Commenter MSR: Go to your home coffee maker and make a cup; it will be at about 140 Fahrenheit.False: To the extent that McDonald’s and other restaurants lowered the temperature of their coffee, all it did was cost those institutions market share—people like hot coffee, and today Starbucks has gone from a local shop to a dominant national chain, despite prices several times higher than McDonald’s, because they serve their coffee hotter than McDonald’s served it to Stella Liebeck, recommending a temperature of 175 to 185 degrees. Starbucks faces suits over third-degree burns hot coffee cases (Jan. 2, 2004), and so does McDonald’s Aug. 13). And, moreover, while in the early 1990′s home coffeemakers only brewed up to 130-140 degrees, today people can and do buy far more expensive and higher-quality coffeemakers that can serve coffee at the 190-to-200-degree temperature that coffee is supposed to be brewed at.
I’ve seen no data that suggest that the small number of people who’ve burned themselves on hot coffee has gone down. If it has, it’s far more likely that the publicity over Stella Liebeck has caused people to be more careful with their hot beverages, and because coffee sleeves, a product invented shortly before Liebeck’s suit went to trial, have become a popular way for restaurants to save paper with the added benefit of additional safety.
Commenter Robert: McDonalds coffee was not only hot, it was scalding – capable of almost instantaneous destruction of skin, flesh and muscle.
False: Stella Liebeck suffered terrible third-degree burns because, while wearing sweatpants that absorbed the liquid and held it to her skin, she sat in a puddle of hot coffee for over ninety seconds.
Commenter Stefan: The burn victim offered to settle with McDonald’s for a token sum (around $10,000 if memory serves)
False: Liebeck asked for $20,000, and then, later, $300,000 to settle before trial. McDonald’s offered a token sum. And why should McDonald’s offer any money when they hadn’t done anything wrong?
Commenter Jeffrey Davis: I’m trying to imagine anyone who was injured that way and that severely not seeking redress. And failing.
Well, Angela McMahon suffered third-degree burns from spilling coffee on herself, and sued on the identical legal theories that Stella Liebeck did. Her case was correctly thrown out, even though the defendant waived the most obvious legal defense.
The tort system is meant to deter wrongdoing; the mistake of the left is the increasingly successful attempt to make the main purpose compensating the injured, and redistributing wealth from wealthier bystanders tangentially related to the victim who haven’t done anything wrong. The tort system is a remarkably inefficient means of performing this task, which is why litigation reform is needed.
Commenter MSR: One other point about the McDonald’s case that should be mentioned here. The award to the woman for injuries was about $130,000 or 13 times her original request. Enough to cover her costs and send a message that it’s better to just settle than take a loosing [sic] case to court.
False: The jury award was $2.9 million. The court lowered this to $650,000. Both Liebeck and McDonald’s appealed, and then settled, allegedly for something close to, if not identical to, the final verdict. McDonald’s didn’t have a losing case: it was only the error of the judge in letting the case get to the jury combined with the error of the jury that caused them to lose. The fact that a defendant can exposed to many multiples of actual damages is one of the serious problems of the tort system. Even when 9 out of 10 juries get it right, if the tenth jury awards ten times as much damages as it should, it undoes the work of the juries that exonerated the defendant. This encourages lottery litigation. (E.g., Jun. 3, 2004).
Commenter MSR: In the course of the trial, as others have noted, it was made clear that the coffee was much closer to boiling than to the temperature of ordinary coffee
False: As noted, coffee is supposed to be that hot, and people prefer coffee that hot, and Starbucks serves even hotter coffee today.
Commenter MSR: many people had been injured (some 700 over the previous decade)
Misleading: McDonald’s sells billions of cups of coffee. There had been 700 complaints over hot coffee in the previous decade, which translates into a complaint rate of 1-in-24-million, with only a small fraction of the complaints reflecting injuries as severe as Liebeck’s. By comparison, 1-in-4-million Americans will be killed by lightning in a given year, and 1-in-20-million Americans (and a much higher ratio of American toddlers) drown in 5-gallon buckets in an average year.
Commenter MSR: the complete absence of any warning that the coffee was nearly at the boiling point
False: Aside from the “open and obvious” danger that coffee presents that should eliminate a warning, Stella Liebeck’s cup did have a warning! The jury thought it was “too small”, which reflects the problem with failure-to-warn claims—one can always second-guess a warning after the fact, because it’s always possible to give a more extensive warning. And defendants are caught in a trap, because if they give too many warnings, they’re accused of failing to warn by burying the important warnings in a morass of unimportant warnings. At what point does common sense come into play?
Commenter theorajones starts off correctly noting that the McDonald’s coffee case is a no-win argument for liberals, but then blows the winning streak when she invokes Valerie Lakey.
Commenter Alek Hidell: it was McDonald’s, not Ms. Liebeck, that forced a trial (and the subsequent “jackpot award”), was it not?
Why is it the defendant’s fault for “forcing a trial” by refusing an unreasonable settlement demand? It’s blaming the victim to say that the shopkeeper brought on his own broken knees because he refused to pay Tony Soprano protection money. McDonald’s was entitled to a fair trial when the plaintiff insisted on going forward, and didn’t get one.
Commenter Cyan: many of these claims were settled
Misleading. Yes, McDonald’s took responsibility when one of its employees spilled coffee on a customer and settled cases of burns from such spills. Because a coffee-spill is usually the fault of the person who spilled the coffee. The Liebeck jury and judge decided to mostly blame the deep pocket instead.
Labels: law school, lawyer stuff, think-abouts, trivial knowledge
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{ 3 comments… read them below or add one }
Other learned and accomplished legal scholars have concluded that the Liebeck case is not “ludicrous on its face, as a matter of law and as a matter of common sense” and that it was not decided “incorrectly.” I share their conclusions.
It is pretty easy to refute the occasional comment on a blog. Most people do not research enough of any matter to comment authoritatively on the matter. That some people have repeated hearsay and rumor in their comments does not indicate or prove that the case was not decided correctly. The vast majority of lay persons do not know the details of the case and still think that it is an example of an abuse of our jury system. I am a trial attorney (I do more defense than plaintiffs’ work), I do know more about the case than the average person and I have reached the conclusion that the system worked well in this case.
It is a gross exaggeration to say that our tort system is killing our economy or ruining our society. First, most court filings are business against business rather than tort cases. Second, we have some of the safest systems (habitation, transportation, sanitation, food safety) of any country in the world. It is precisely the safety of our society and products that make the USA a desirable and preferred destination for people to live, invest and do business. Our laws and regulations make our system transparent and outcomes predictable. Just look at the countries where the courts are not open to people, where the burden of safe products is not on the producer. The outcomes in those societies, to the extent they are predictable, are predictably bad. Lack of regulation in Haiti contributed directly to the terrible mortality and destruction which is the outcome of the recent earthquake.
Responsibility is a two-way street. Just as Ms. Liebeck was held accountable by the judge and jury through a reduced verdict, so should McDonald’s be held accountable for known, predictable, and voluntarily-undertaken bad outcomes from its actions.
By the way, for what it is worth, both Liebeck and the trial judge were reportedly conservative Republicans.
Twitter: marissabracke
August 3, 2010 at 8:32 pm
Hi Paul!
Thanks for the thoughtful response to the post, though I wanted to point out that the meat of the post to which you’re responding is actually from Overlawyered. The post can be found at http://overlawyered.com/2005/10/urban-legends-and-stella-liebeck-and-the-mcdonalds-coffee-case/
I was posting it because I find the conversation around the case interesting, but if you want to get into more debate around it, you might be better off posting your comment at the original post.
I appreciate the comment and the reasoned analysis though!
–Marissa
Marissa Bracke´s last blog ..Figuring out what to write about when you think you have nothing to write about