# Maybe I'm the idiot...



## The Gabba Goul (Feb 11, 2005)

I just dont get it...I remember years ago when some lady sued McDonalds because apparently spilling hot liquid on yorself might cause injury...then you had the people who sued the tobacco companies because inhaling smoke might make you sick...then there was the people who sued fast food restaurants because apparently eating hamburgers every day might make you fat...now I see there is a group of people trying to sue Apple because sticking somehting in your ear canal and blasting music through it might make you deaf...is this some kind of joke??? I dunno...I look at it like this...nobody's saying you cant do whatever youw ant to do...but you must be willing to face the consequences...and dont play dumb like "you didnt know" what would happen, I'm jsut waiting for some moron to sue Baretta because he didnt know that shooting somebody might kill them...seriously...I know some blame the lawyers...I dont...I blame greedy people who are looking for a quick win-fall, and could care less how ridiculous they look to the rest of the world...but seriously...why are people so quick to try and take things to litigation now-a-days??? It's sad really...but does anybody else think that this latest one against Apple is the biggest joke yet???

*****
[image]https://radio.weblogs.com/0119318/Screenshots/rose.jpg[/image]"See...What I'm gonna do is wear a shirt only once, and then give it right away to the laundry...eh?
A new shirt every day!!!"​


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## Badrabbit (Nov 18, 2004)

I agree with you. Today's society suffers from a startling lack of personal responsibility.

I don't agree with you about how to spell Beretta (Baretta) or windfall (win-fall).

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Women thrive on novelty and are easy meat for the commerce of fashion. Men prefer old pipes and torn jackets. 
Anthony Burgess


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## The Gabba Goul (Feb 11, 2005)

oops...maybe I should sue the forum for not making me use spell-check ...

*****
[image]https://radio.weblogs.com/0119318/Screenshots/rose.jpg[/image]"See...What I'm gonna do is wear a shirt only once, and then give it right away to the laundry...eh?
A new shirt every day!!!"​


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## NewYorkBuck (May 6, 2004)

> quote:Today's society suffers from a startling lack of personal responsibility


I couldnt agree more. IMO, one of the single biggest problems facing our society is the overwhelming lack of responsibility for oneself and ones own actions.


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## Coolidge24 (Mar 21, 2005)

> quote:_Originally posted by NewYorkBuck_
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My favorite case is still the erstwhile burglar who fell through a skylight into a kitchen onto, I believe, some knives, and then commenced a tort action against the property owner whom he'd originally hoped to burgle.


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## jbmcb (Sep 7, 2005)

Wasn't there a lady who, after watching the documentary Supersize Me, went on a McDonald's diet? She only had salads, iced tea, water, chicken sandwiches, and the occasional hamburger, and lost around thirty pounds in a month. Her cholesterol improved as well, IIRC.


Good/Fast/Cheap - Pick Two


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## gmac (Aug 13, 2005)

I know!

Next thing you'll get people wanting to sue drug companies for releasing unsafe and improperly tested drugs that kill people or cause terrible birth deformities. Or power companies who pollute the water supply and poison entire communities.

What is the world coming to when enormous multinational corporations have to be held accountable for their negligence and malfeasance?

Seriously, you guys need to lighten up with the personal responsibility jive. _Of course_ people have to be responsible for themselves Ã¢â‚¬â€œ but companies who aggressively market products to individuals also have a duty of care to those people. DonÃ¢â‚¬â„¢t sell them coffee which is hot enough to scald, donÃ¢â‚¬â„¢t make ear plugs which are obviously going to cause hearing problems even when used as designed, donÃ¢â‚¬â„¢t withhold evidence of the cancer causing properties of your product.

I realize that many AAAC contributors prefer _laissez faire_ style regulation where _caveat emptor_ is the guiding principle of every transaction Ã¢â‚¬â€œ but weÃ¢â‚¬â„¢ve moved beyond that. ItÃ¢â‚¬â„¢s called progress and is why we donÃ¢â‚¬â„¢t send children down mines any more and why you are not allowed to discriminate based on race in your business dealings, among many other things that have improved over the last 150 years or so.

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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by gmac_
> Don't sell them coffee which is hot enough to scald, don't make ear plugs which are obviously going to cause hearing problems even when used as designed, don't withhold evidence of the cancer causing properties of your product.


So, Apple will have to design earbuds that somehow automatically detect how well a person can hear, then limit the volume so it won't damage their hearing? I have to crank the volume of my iPod 'cause the earbuds don't fit well, and half the sound ends up outside my ear canal.

As for the scalding coffee, I guess no more espresso or cappucino, and percolators ought to be banned, as well as teas which require boiling water to steep properly...

Good/Fast/Cheap - Pick Two


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## gmac (Aug 13, 2005)

> quote:_Originally posted by jbmcb_
> 
> Wasn't there a lady who, after watching the documentary Supersize Me, went on a McDonald's diet? She only had salads, iced tea, water, chicken sandwiches, and the occasional hamburger, and lost around thirty pounds in a month. Her cholesterol improved as well, IIRC.
> 
> Good/Fast/Cheap - Pick Two


If I recall correctly she was sponsored by some right wing hate sheet who had targetted the maker of Supersize Me for having the gall to suggest that McDonalds had been something less than honest in their promotions.

Of course, most of the new 'healthy' items on the McDonalds menu are only there because of that movie......

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## manton (Jul 26, 2003)

> quote:_Originally posted by Coolidge24_
> 
> My favorite case is still the erstwhile burglar who fell through a skylight into a kitchen onto, I believe, some knives, and then commenced a tort action against the property owner whom he'd originally hoped to burgle.


No, no. It was a school in Stockton, California. He didn't fall onto any knives. But he did sue the school, and the district settled. Still, that's the all time greatest tort horror story, in my opinion.


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## Fogey (Aug 27, 2005)

> quote:_Originally posted by manton_
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 I thought the greatest tort horror story was when 'OJ' was convicted at the civil trial after being aquitted in the criminal trial. What an interesting justice system America has.


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## The Gabba Goul (Feb 11, 2005)

> quote:_Originally posted by gmac_
> 
> I know!
> 
> Next thing you'll get people wanting to sue drug companies for releasing unsafe and improperly tested drugs that kill people or cause terrible birth deformities. Or power companies who pollute the water supply and poison entire communities.


all due respect...I believe you're comparing apples to oranges...perhaps I'm just looking at it differently, but in those situations, the people who were harmed had no way of knowing that they were being harmed...but to me there is a big difference between that, and blasting music directly into your skull without thinking that perhaps this wasnt the best thing for your hearing...especially when it isnt uncommon knowledge how delicate the workings of one's inner ear really are...I bet if somebody was suing a pencil company for hearing loss after sticking one of their products in their ear, the case would probably be thrown out...now, granted pencils arent designed to go into your ear whereas earbuds are...but to me, it's a matter of using common sense...as has been mentioned, Apple can't design a product that can automatically regulate its self to the unique requirements of each user...that's what the volume controls are for...in this instance I think it's ultimately up to the consumer to be responsible about how they use this product...

*****
[image]https://radio.weblogs.com/0119318/Screenshots/rose.jpg[/image]"See...What I'm gonna do is wear a shirt only once, and then give it right away to the laundry...eh?
A new shirt every day!!!"​


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## gmac (Aug 13, 2005)

> quote:_Originally posted by jbmcb_
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You drink cappucino at temperatures that would scald your skin?

Apple should be designing ear buds that work for the vast majority of people without causing them to lose their hearing. You may have to find another manufacturer who makes ear pieces which suit your obviously unique lugs.

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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by The Gabba Goul_
> 
> I just dont get it...I remember years ago when some lady sued McDonalds because apparently spilling hot liquid on yorself might cause injury


Well, I'm a trial lawyer, so any remarks I may offer will be dismissed as hopelessly tainted by self-interest. I will merely note that what you think you know about _Liebeck v. McDonald's, Inc._ is, in all likelihood, wrong. You can view a summary of the case here:

Of course, this is ATLA's website, so some of you may wish to don HazMat gear before viewing.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## manton (Jul 26, 2003)

> quote:_Originally posted by JLPWCXIII_
> 
> I thought the greatest tort horror story was when 'OJ' was convicted at the civil trial after being aquitted in the criminal trial. What an interesting justice system America has.


Well, in my opinion he had that coming.


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## Fogey (Aug 27, 2005)

> quote:_Originally posted by manton_
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 Yes...I now realise my comment could be taken either way, but I meant it in the sense that it was a shame he wasn't found guilty in the first instance as well.


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## gmac (Aug 13, 2005)

> quote:_Originally posted by Yckmwia_
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Thanks for the link there Yckmwia

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## gmac (Aug 13, 2005)

> quote: Yes...I now realise my comment could be taken either way, but I meant it in the sense that it was a shame he wasn't found guilty in the first instance as well.


Much lower burden of proof in a civil case.

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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by JLPWCXIII_
> 
> I thought the greatest tort horror story was when 'OJ' was convicted at the civil trial after being aquitted in the criminal trial. What an interesting justice system America has.


Criminal and civil liability are two different matters, with different standards of proof. Under the higher standard of proof applicable to his criminal trial O.J. was found not guilty. At his civil trial a lower standard of proof was applied, and he was found civilly liable for Nichole's death. It's not an uncommon situation really; although the O.J. saga was an uncommon case, to be sure.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## gmac (Aug 13, 2005)

> quote:_Originally posted by The Gabba Goul_
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The point I was making was that we as individuals, communities and consumers have the right to be protected from careless and malicious companies.

Do I think Apple should be held to the same level of liabity as, say, Union Carbide or PG&E? No, of course not. But if it is proven in court that they have caused users of their product to be harmed when they could or should have anticipated that harm then, yes, I believe they should make restitution.

It is the principle of the thing, not the scale of it.

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## Fogey (Aug 27, 2005)

> quote:_Originally posted by Yckmwia_
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 Thank-you, yes. I did realise this, though it seems to promote built-in unfairness either way. If he was innocent, then he had to pay a large sum of money for nothing. If he was guilty, then justice has been ham-strung.


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## The Gabba Goul (Feb 11, 2005)

> quote:_Originally posted by gmac_
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> It is the principle of the thing, not the scale of it.
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point understood...and I'll have to admit that I dont have all the facts...but still...I'm assuming that Apple would have put the same warning in the instructions of their iPods that come in the instructions with just about any music playing device...something to the effect of "playing music too loud could be detremental to your hearing"...I know my home stereo system came with that warning...so I'd imagine that an iPod would aswell...plus...just about everybody knows that loud noises over a sustained period of time is not good for your hearing...I just have a hard time believing that these people couldnt expect any undesirable effects from sticking a little speaker in their ear and "cranking it to eleven"...that's more the point I'm making...

*****
[image]https://radio.weblogs.com/0119318/Screenshots/rose.jpg[/image]"See...What I'm gonna do is wear a shirt only once, and then give it right away to the laundry...eh?
A new shirt every day!!!"​


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by JLPWCXIII_
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O.J. was found not guilty: I doubt if anyone believes he is innocent. The O.J. case was one of those periodic American passion plays, many of which take place in a courtroom. It wasn't really indicative of the routine virtues or defects of the American criminal justice system.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## gmac (Aug 13, 2005)

Oh, I agree, it sounds ridiculous on the face of it. But, like with the lady burned by the coffee, it may turn out to have some merit.


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## Doctor Damage (Feb 18, 2005)

Yeah, the baby boomer generation and their kids seem particularly prone to lack of personal responsibility. We nabbed two teenage girls trespassing, and the next day our mailbox was smashed. Gee, I wonder who did it?

A minor example, to be sure, but typical of 'the-rules-apply-to-everyone-but-me' attitude that is increasingly prevalent among parts of society.

DocD


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## JSK (Dec 17, 2005)

People have said that the ipods have an uncommonly good ability to drive headphones, which came about because Steve Jobs is partially deaf. Then again, there IS volume control, so it's no one's fault but one's own if hearing loss does occur. It's not like the volume is fixed at a ridiculous level, and they weren't forced to listen to the things. I agree that it's quite stupid.


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by gmac_
> You drink cappucino at temperatures that would scald your skin?


Not to get too far off topic, but...

Espresso is usually served around 200F, just shy of boiling, perfectly capable of rapidly burning your skin if you are a dolt and handle your cup carelessly. You could make it without the whole steamed water through grounds arrangement, then it wouldn't be espresso and would taste like mud.

If one can't figure out that coffee is hot, and hot things can burn you, then maybe one should stick to iced tea.



> quote:
> Apple should be designing ear buds that work for the vast majority of people without causing them to lose their hearing. You may have to find another manufacturer who makes ear pieces which suit your obviously unique lugs.


Maybe Apple did design earbuds that work great for the vast majority, and now they are being sued by the small minority. I replaced the stock earbuds with Etymotic ER-6's, which effectively cancel out background noise, allow me to listen to music at a much softer level, and cost around $250. I'm sure, if the lawsuit is successful, everyone will be clamoring to buy them to save their hearing (sarcasm off 

Good/Fast/Cheap - Pick Two


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## bosthist (Apr 4, 2004)

If I recall correctly Apple has (or had) a lower top volume for the European iPod models because of EU regulations, something along the line of 100 decibels, which is still plenty loud.

Etymotic ear buds are great, but wait until the lawsuits start when people get hit by cars they can't hear or robbed by muggers that come up behind them.


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## gmac (Aug 13, 2005)

Espresso is not served at 200F,

The water is pumped through the coffee grounds at that temperature, it clearly cools as it meets the other elements in the process which are not at that temperature - the machine, the cup the coffee itself.

If Apple have made earbuds that work well and with no harm for the vast majority of users, as I am sure they have, then I suggest that the lawsuit is likely to be dismissed since Apple have satisfied their duty of care.

I tend to agree that people who don't know loud music or hot coffee can hurt them should probably stay away from those things - but we don't get to decide that. All we can do is force companies to live up to their responsibilities and unfortunately that requires lawyers and courts and sometime frivolous actions. Although the link above showed that what would seem to be a daft case, with the coffee lady, can turn out to have considerable merit

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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by jbmcb_
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Espresso is brewed at approximately 194 - 202 F. It is also ideally served in a small, thick demi-tasse which will absorb much of the heat and cause it to quickly cool so that one may drink it without suffering severe burns. McDonald's was _holding_ its coffee at 180 - 190 degrees F, and serving it in thin composite paper cups that absorbed little of the heat. Thus, McDonalds was serving its _drive-through_ customers 16 oz. cups of near-boiling liquid, and it knew that doing so could cause severe burns. Despite this knowledge, it continued the practice until Ms. Liebeck rang them up. And it isn't just a matter of knowing hot coffee can cause burns: it is the severity of burn caused by the coffee. Ms. Liebeck suffered third degree burns, full tissue destruction, requiring debridement and skin grafts - from a cup of coffee.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## tmlewis (Aug 7, 2005)

> quote:_Originally posted by Yckmwia_
> Espresso is brewed at approximately 194 - 202 F. It is also ideally served in a small, thick demi-tasse which will absorb much of the heat and cause it to quickly cool so that one may drink it without suffering severe burns. McDonald's was _holding_ its coffee at 180 - 190 degrees F, and serving it in thin composite paper cups that absorbed little of the heat. Thus, McDonalds was serving its _drive-through_ customers 16 oz. cups of near-boiling liquid, and it knew that doing so could cause severe burns. Despite this knowledge, it continued the practice until Ms. Liebeck rang them up. And it isn't just a matter of knowing hot coffee can cause burns: it is the severity of burn caused by the coffee. Ms. Liebeck suffered third degree burns, full tissue destruction, requiring debridgement and skin grafts - from a cup of coffee.
> 
> "There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


Ms. Liebeck should have known better than to drive with a near boiling liquid in an obviously flimsy cup between her legs.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by bosthist_
> 
> If I recall correctly Apple has (or had) a lower top volume for the European iPod models because of EU regulations, something along the line of 100 decibels, which is still plenty loud.
> 
> Etymotic ear buds are great, but wait until the lawsuits start when people get hit by cars they can't hear or robbed by muggers that come up behind them.


I run my Nomad through a Headroom amp into a pair of Etymotics. Sweet. And loud.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by tmlewis_
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Oh Christ, read the link. She wasn't driving. She was a passenger. The car was stopped. She popped the lid off the cup to add condiments and the little bit that splashed onto her hands was so hot that she lost control of the cup and dumped the contents into her lap. Still the jury found her to be 20 percent at fault and reduced McDonald's liability by that fraction.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by tmlewis_
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And Ms. Liebeck didn't know, nor was it reasonable for her to assume, that McDonald's served its coffee at that extreme temperature. It was not the industry practice. Thus, a reasonable person in Ms. Liebecks positon would not foresee that the smiling clerk would hand her a cup of near-boiling coffee, and would not be prepared to handle such an item. That is why she prevailed at trial, among other reasons.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Vladimir Berkov (Apr 19, 2005)

> quote:_Originally posted by Yckmwia_
> 
> Espresso is brewed at approximately 194 - 202 F. It is also ideally served in a small, thick demi-tasse which will absorb much of the heat and cause it to quickly cool so that one may drink it without suffering severe burns. McDonald's was _holding_ its coffee at 180 - 190 degrees F, and serving it in thin composite paper cups that absorbed little of the heat. Thus, McDonalds was serving its _drive-through_ customers 16 oz. cups of near-boiling liquid, and it knew that doing so could cause severe burns. Despite this knowledge, it continued the practice until Ms. Liebeck rang them up. And it isn't just a matter of knowing hot coffee can cause burns: it is the severity of burn caused by the coffee. Ms. Liebeck suffered third degree burns, full tissue destruction, requiring debridgement and skin grafts - from a cup of coffee.


But if I remember correctly there was a lot of questionable bits about the case. For instance, there was contributory negligence by Ms. Liebeck. Under the old rules she would have gotten nothing regardless of McDonald's action/inaction.

Also, the testing and establishment of a custom of having coffee served at a lower temp. at other restaurants by the plaintiff's lawyer using his own staff is a bit suspect in my opinion.

I think the real reason for the large punitive award was simply the empathy factor of the jury (always a factor it seems) plus the fact that McDonald's a big corporation was the defendant, and they had refused to settle the case early on.


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## gmac (Aug 13, 2005)

I thought our boy tmlewis had learned something about understanding the facts before shoooting his mouth off.

Apparently not.....

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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> 
> Espresso is brewed at approximately 194 - 202 F. It is also ideally served in a small, thick demi-tasse which will absorb much of the heat and cause it to quickly cool so that one may drink it without suffering severe burns.


Right, but there is still that window, right after being poured, when it's still scalding hot (it probably doesn't loose more than 25% of it's heat in the first minute or so, otherwise the demitasse would crack from thermal expansion.) So, we had better ban espresso, as someone may injure themselves when drinking it. Not to mention, of course, black tea, which requires boiling water to steep properly. Looks like we'll be stuck with green tea from now on.



> quote:And it isn't just a matter of knowing hot coffee can cause burns: it is the severity of burn caused by the coffee. Ms. Liebeck suffered third degree burns, full tissue destruction, requiring debridgement and skin grafts - from a cup of coffee.


That's very sad, and I feel bad for her, but that's what I'd expect when someone spills *hot liquid* on themselves. Really, does the degree of burn matter? If it was a first degree burn, would McDonald's be in the clear? Of course not, all that matters is that her lawyers got paid.

Good/Fast/Cheap - Pick Two


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## tmlewis (Aug 7, 2005)

> quote:_Originally posted by gmac_
> 
> I thought our boy tmlewis had learned something about understanding the facts before shoooting his mouth off.
> 
> Apparently not.....


Haha, gmac last time we were in a discussion the facts proved me right....sounds like someone has an axe to grind


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## Yckmwia (Mar 29, 2005)

_Originally posted by Vladimir Berkov_



> quote:But if I remember correctly there was a lot of questionable bits about the case. For instance, there was contributory negligence by Ms. Liebeck. Under the old rules she would have gotten nothing regardless of McDonald's action/inaction.


Which is why comparative negligence is now the standard, and has been for some time.



> quote:Also, the testing and establishment of a custom of having coffee served at a lower temp. at other restaurants by the plaintiff's lawyer using his own staff is a bit suspect in my opinion.


You must know something I don't, both about this case and about trial practice in general. If an attorney put himself in the position of being a witness in his own case, he would likely be disqualified. The custom in the industry and the other technical matters were established by independent expert testimony, which no doubt cost a small fortune. But - once again - as the summary on the ATLA website indicates, the most damaging evidence came from McDonald's itself.



> quote:I think the real reason for the large punitive award was simply the empathy factor of the jury (always a factor it seems) plus the fact that McDonald's a big corporation was the defendant, and they had refused to settle the case early on.


Again, you must know something that I don't, because settlement discussions are generally inadmissible at trial, so the jury would never know that McDonald's had rejected all previous settlement demands. Yes, empathy is surely a factor in any jury's award of discretionary damages. Of course, this requires that the plaintiff be one with whom the jury can empathize. Little old ladies who suffer third degree burns to their thighs, groin, and buttocks from a spilled cup of coffee tend to fall into this class, no question.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by jbmcb_
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Wow! Tell you what: here's a little thought experiment. Would it matter to you if you suffered a first-degree burn on your groin, or a third-degree burn? Get back to me when you've finished your research.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## ChubbyTiger (Mar 10, 2005)

jbmcb - You like the Etymotic ER-6? I was thinking about getting some. How good are they at blocking background noise? I'm sick of hearing the subway.

I would also like to add that the article linked by Yckmwia stated that that McDonalds served coffee around 180 deg F, while the average home coffee was served around 130 deg F. Being a good scientist, I did the experiment on my normal morning coffee brewing. My home coffee is served at 165 deg F. While this is obviously only one point, it would lead me to believe that the article was exagerating a bit for effect. Feel free to try it yourselves and let us know the results. 

CT


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> Wow! Tell you what: here's a little thought experiment. Would it matter to you if you suffered a first-degree burn on your groin, or a third-degree burn? Get back to me when you've finished your research.


Either one would probably suck pretty bad, but degree of burn isn't material to weather McDonald's was negligent in serving hot coffee.

Even if the coffee was a much cooler 140F, she would have been burned after a few seconds of exposure. Perhaps not a third degree burn, but at least a first or second.

You could serve coffee at a very safe 130F, in which case you'd have no more than a few minutes to drink it before it gets lukewarm and nasty.

Good/Fast/Cheap - Pick Two


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by ChubbyTiger_
> 
> jbmcb - You like the Etymotic ER-6? I was thinking about getting some. How good are they at blocking background noise? I'm sick of hearing the subway.
> 
> ...


The article actually says that "Coffee served at home is generally 135 to 140 degrees." Following your advice, I just now went to the kitchen in my office, produced the cooking thermometer that I routinely carry on my person, and plunged it into a freshly brewed pot of coffee. It registered a maximum temperature of c. 165 F. As neither I, nor anyone I know, is in the habit of drinking coffee straight from the pot, I poured a serving of the piping hot brew into a 12 oz ceramic mug. After allowing it to stand for approximately one minute - a more or less common occurrence when one is serving, NOT BREWING, coffee - I then inserted the thermometer into the approximate center of the liquid. This returned a reading of just slightly over 140 F. I am not a scientist, and I know little about the thermodynamics of liquids; thus, I will not speculate as to the precise cause of the conduction of heat from the liquid into the cup and the surrounding air as it was transfered from pot to cup. I leave that to you. Of course, neither your anecdote nor mine is of much worth in this matter; but, as I am the obliging sort, I thought I'd report my findings, as you requested.

And, please, feel free to pass along any other possible exaggerations that your precise, scientifically trained mind - which you routinely display in your posts - discerns in the ATLA article I cited. I'll convey your concerns to ATLA's Board and Executive Committee at my earliest convenience. With the appropriate disclaimer, of course.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## bosthist (Apr 4, 2004)

My own experiment showed 150 degrees five minutes after the brew cycle had ended, with the carafe on a warming plate and the thermometer placed directly in the pot.


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## 16128 (Feb 8, 2005)

I agree that the McDonald's coffee negligence case was valid - one does not expect to receive 3rd degree burns requiring skin grafts because of a drink spill, although initially I dismissed this case as craziness. Coffee spills - it shouldn't resemble magma.

However, I do agree that the consumer has a reasonable duty to ensure that he doesn't use a product stupidly. There are warnings on hair dryers not to use them in the bath; I have to assume that someone was once dumb enough to try this.


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## Yckmwia (Mar 29, 2005)

_Originally posted by jbmcb_



> quote: Either one would probably suck pretty bad, but degree of burn isn't material to weather McDonald's was negligent in serving hot coffee.


Wrong. The severity of the risk of harm created by one's conduct is an essential factor in determining whether one acts with due care; i.e., whether one is negligent. And McDonald's' conduct in this matter was found by the jury to go beyond mere negligence. Punitive damages are not available in straightforward negligence actions.



> quote: Even if the coffee was a much cooler 140F, she would have been burned after a few seconds of exposure. Perhaps not a third degree burn, but at least a first or second.


Which is what one expects when one spills coffee on oneself. One does not expect third degree burns and tissue destruction. Well, the mythical reasonable person doesn't. Apparently some members of AAAC think nothing of it. Not terribly surprising. In any event, McDonald's now holds its coffee at 158 F, which will cause severe burns if it is in contact with the skin for 60 seconds, not 2 to 7 seconds, as was the case with its previous 180 - 190 F coffee.



> quote:You could serve coffee at a very safe 130F, in which case you'd have no more than a few minutes to drink it before it gets lukewarm and nasty.


This is not the point. The point is not to eliminate all risks of burning from commerically prepared and served hot beverages; only to eliminate unreasonable risks.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by VS_
> 
> . Coffee spills - it shouldn't resemble magma.


Well said. May I appropriate it for my own use?

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## eromlignod (Nov 23, 2005)

What apparently hasn't been mentioned yet is that many of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world. Getting hurt is lucrative stuff these days. If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble...it's on the level of winning the lottery now!

The reason is clear. If a guy gets hurt at Wal-Mart and his doctor bills and pain and suffering amount to $50,000, then Wal-Mart just gets their wallet out and stuffs the cash in your breast pocket, pats you on the cheek and says, "There you go. And here's a little extra...get the old lady something nice." That's why we have punitive damages: something that will hurt Wal-Mart so that they'll think twice about doing it again and not just pay everyone off.

The problem is that the punitive damages are awarded to the plaintiff (and his lawyer), which gives a tremendous incentive to sue the pants off any and everybody you can find who has a lot of money. Money is nice, especially free money! There's your jackpot, lottery mentality.

It seems to me that a way to help solve the problem is to charge the company the punitive damages as usual, but NOT award it to the plaintiff. It could be donated to a charity or a trust fund. Then it would be more of a "fine", like it was intended to be. Without the big payoff, there would be fewer of these frivolous, Robin-Hood-type lawsuits clogging up the system.

Don
Kansas City


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by eromlignod_
> 
> What apparently hasn't been mentioned yet is that many of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world. Getting hurt is lucrative stuff these days. If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble...it's on the level of winning the lottery now!
> 
> ...


I haven't much time at the moment - off to court - but virtually everything you say in this post is a myth or a profound misunderstanding. I will merely note as an initial matter that if you believe that successfully prosecuting a significant personal injury claim against a defendant like McDonald's or Wal-Mart is a form of "free money," then you know practically nothing about how such matters actually work. And in the interests of full disclosure I will say that I am not a personal injury lawyer.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Relayer (Nov 9, 2005)

"What apparently hasn't been mentioned yet is that *many* of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world. Getting hurt is lucrative stuff these days. If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble...it's on the level of winning the lottery now!"

Please tell me you're not claiming this is a "myth or a profound misunderstanding". Please.


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## eromlignod (Nov 23, 2005)

> quote:_Originally posted by Relayer_
> 
> "What apparently hasn't been mentioned yet is that *many* of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world. Getting hurt is lucrative stuff these days. If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble...it's on the level of winning the lottery now!"
> 
> Please tell me you're not claiming this is a "myth or a profound misunderstanding". Please.


It might be a misunderstanding by the public, but it's a pervasive one. I'm constantly hearing people telling each other, "You ought to sue them, you could get rich!". It's not to excercise their right, but because they believe they can cash in on it. I personally know two lawyers who became multi-millionaires on a single case each...one retired at 47.

As long as there are people who can end up making tremendous sums from lawsuits, there will be people who deperately want to pursue such lawsuits. Not many people win the lottery, but that doesn't keep millions of mathematically-challenged people from paying their weekly "idiot tax".

Don
Kansas City


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by Relayer_
> 
> "What apparently hasn't been mentioned yet is that *many* of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world. Getting hurt is lucrative stuff these days. If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble...it's on the level of winning the lottery now!"
> 
> Please tell me you're not claiming this is a "myth or a profound misunderstanding". Please.


To which myth or misunderstanding do you refer? There are four affirmative statements in the item you quote.

1.



> quote:What apparently hasn't been mentioned yet is that *many* of the lawsuits are the result of a "jackpot" mentality that has gripped the legal world


Myth. Actually, a lie concocted by tort reformers and right-wing media pundits. Individual instances of attorney greed are not indicative of a "jackpot mentality that has gripped the legal world." KC Don appears to have fallen for this whopper.

2.



> quote:Getting hurt is lucrative stuff these days.


Myth. Actually an extreme idiocy.

3.



> quote:If you are injured, you stand to gain more than just reimbursement for your hospital bill and extra for your trouble


A meaningless statement. In some cases, one injured as the result of another's tortious conduct will be compensated in a manner over and above "reimbursement for your hospital bill and extra for your trouble." In some cases not.



> quote:it's on the level of winning the lottery now!


A myth. Actually a statement of such profound imbecility that further discussion is pointless. Do you think Ms. Liebeck "won the lottery"? Really? So, then, you would willingly incur third degree burns to your penis, scrotum, thighs, and anus, which require debridement and skin grafts, in exchage for a check in the neighborhood of $250K? Some lottery.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

_Originally posted by eromlignod_



> quote:It might be a misunderstanding by the public, but it's a pervasive one. I'm constantly hearing people telling each other, "You ought to sue them, you could get rich!". It's not to excercise their right, but because they believe they can cash in on it.


As a general rule, one should not base one's belief on any matter of importance on what "people" tell one another. It's just a bad practice. I have, indeed, had potential clients come to me be spouting the same nonsense; I quickly disabuse them of this form of false consciousness.



> quote:I personally know two lawyers who became multi-millionaires on a single case each...one retired at 47.


Good for them. I'm always cheered to hear of my brethren's success. Your acquaintances must have been skilled attorneys



> quote:As long as there are people who can end up making tremendous sums from lawsuits, there will be people who deperately want to pursue such lawsuits. Not many people win the lottery, but that doesn't keep millions of mathematically-challenged people from paying their weekly "idiot tax".


Desperately wanting to pursue a lucrative lawsuit, and successfully prosecuting such a claim are two entirely different matters.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Vladimir Berkov (Apr 19, 2005)

The info I had I got from a Wall Street Journal article and from my torts professor when we had to learn about the case a couple weeks ago. 

To a large degree I don't have so much a problem with the application of the current rules but rather with those rules themselves. For instance the abandonment of the old strict contributory negligence rules I think was a bad idea. There could have been a much better solution made, perhaps with exceptions made for grossly negligent conduct.

Same with strict employer-employee liability. That rule ends up with all sorts of perverse results. And if it didn't exist at all, a much more tailored rule could exist which would eliminate the unjust claims and yet allow legitimate claims against employers based more on ordinary negligence standards rather than strict liability.


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## Yckmwia (Mar 29, 2005)

_Originally posted by Vladimir Berkov_



> quote:The info I had I got from a Wall Street Journal article and from my torts professor when we had to learn about the case a couple weeks ago.
> 
> To a large degree I don't have so much a problem with the application of the current rules but rather with those rules themselves. For instance the abandonment of the old strict contributory negligence rules I think was a bad idea.


Why? You believe a person who is found to be only marginally liable for his or her injury should be denied any recovery whatsoever? What compelling public policy is behind this belief?



> quote:Same with strict employer-employee liability. That rule ends up with all sorts of perverse results. And if it didn't exist at all, a much more tailored rule could exist which would eliminate the unjust claims and yet allow legitimate claims against employers based more on ordinary negligence standards rather than strict liability.


Really? Well, there's the subject for your law review article. Good luck.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Vladimir Berkov (Apr 19, 2005)

The reason is that allowing comparitive negligence really circumvents the whole element of causation. Were it not for the plaintiff's negligence, the accident would not have occurred. 

For example, a man is walking along a sidewalk while simultaniously reading a newspaper so he can't see the street. A street vendor has "negligently" left out some banana peels on the sidewalk. The man of course never sees them because of the newspaper, slips and falls. Each person is negligent, but it seems unjust to allow the man to recover from the streetvender because were it not for his own negligence the accident would have been avoided in the first place regardless of the vendor's actual negligence in leaving the peels on the street.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by Vladimir Berkov_
> 
> The reason is that allowing comparitive negligence really circumvents the whole element of causation. Were it not for the plaintiff's negligence, the accident would not have occurred.
> 
> For example, a man is walking along a sidewalk while simultaniously reading a newspaper so he can't see the street. A street vendor has "negligently" left out some banana peels on the sidewalk. The man of course never sees them because of the newspaper, slips and falls. Each person is negligent, but it seems unjust to allow the man to recover from the streetvender because were it not for his own negligence the accident would have been avoided in the first place regardless of the vendor's actual negligence in leaving the peels on the street.


Turn back the argument another step: the accident would have been avoided in the first place if the banana peels had not been left on the sidewalk by the vendor. So who in fact is respsonsible? Putting the word negligently in quotes doesn't absolve the vendor of responsiblity. Furthermore, littering is against the law--I have a reasonable expectation of being able to walk down a sidewalk without slipping and falling on banana peels left out by vendors.


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## eromlignod (Nov 23, 2005)

> quote:_Originally posted by Yckmwia_
> 
> 
> 
> ...


Heh. Take is easy, pal. No one ever brought your mother into it. Spewing a lot of abusive, juvenile vitriol about my "profound imbecility" isn't contributing to your argument very well. I'll pit my intelligence against yours any day.

I just expressed my observations about how the situation appears to the non-legal public. If everything is so wonderfully fair and equitable, then what's all this silly talk about "tort reform" I hear in the press?

Educate us; don't insult us like a belligerent little kid.

Don
Kansas City


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## Vladimir Berkov (Apr 19, 2005)

> quote:_Originally posted by bosthist_
> 
> 
> 
> ...


The difference is who is trying to collect against whom. The vendor is not trying to recover anything from anybody. The man with the paper would attempt to collect from the vendor. That is why the problem exists.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by Vladimir Berkov_
> 
> 
> 
> ...


Whoa. So a party seeking compensation for his injury is to be held to a higher standard than the party against whom the claim is made?

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

_Originally posted by eromlignod_


> quote: Heh. Take is easy, pal. No one ever brought your mother into it. Spewing a lot of abusive, juvenile vitriol about my "profound imbecility" isn't contributing to your argument very well. I'll pit my intelligence against yours any day.
> 
> I just expressed my observations about how the situation appears to the non-legal public. If everything is so wonderfully fair and equitable, then what's all this silly talk about "tort reform" I hear in the press?
> 
> ...


I'm sorry, I don't recall assuming responsibility for your education on any matter whatsoever; and when an aspiring pupil issues declarations along the lines of "suffering a severe injury is like winning the lottery" then I respectfully decline to undertake the task. It is beyond my limited pedagogical powers. You're on your own mate.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Vladimir Berkov (Apr 19, 2005)

Not exactly a higher standard, but a standard. We don't penalize people for acts that would be negligence but where no injury happens, right? If the man had not stepped on the banana peels but simply saw them sitting there on the ground he could not sue the vendor because of the possibility he could have been injured. 

People are doing millions of potentially tortious acts every day. But the law is only involved once you have some sort of victim or injury. We only want to allow recovery for actual wrongs. 

Allowing a plaintiff to recover when both parties have been negligent is essentially punishing the defendant for conduct which didn't on its own cause an injury. Plus, when you reduce punitive damages on a comparitive negligence basis it really is meaningless. If you are getting 2.7 million in punitive, do you really care that the damages are reduced 20% or even 50% because you were also negligent?

There has to be a higher general burden against a plaintiff simply because the plaintiff has a high personal monetary interest in collecting against the defendant. Whereas if the defendant wins he gains nothing (and usually is actually worse off than if the suit had never taken place.)


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## gmac (Aug 13, 2005)

> quote:_Originally posted by Vladimir Berkov_
> 
> The difference is who is trying to collect against whom. The vendor is not trying to recover anything from anybody. The man with the paper would attempt to collect from the vendor. That is why the problem exists.


The vendor has suffered no injury - why would he be claiming anything?

------------------


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> After allowing it to stand for approximately one minute - a more or less common occurrence when one is serving, NOT BREWING, coffee - I then inserted the thermometer into the approximate center of the liquid. This returned a reading of just slightly over 140 F. I am not a scientist, and I know little about the thermodynamics of liquids; thus, I will not speculate as to the precise cause of the conduction of heat from the liquid into the cup and the surrounding air as it was transfered from pot to the cup. I leave that to you. Of course, neither your anecdote nor mine is of much worth in this matter; but, as I am the obliging sort, I thought I'd report my findings, as you requested.


140F! You're only seconds away from a nasty second or third degree burn there. I wouldn't serve that stuff to any guests you have over, as you may open the door to tortious action. Of course, if you burn yourself, I guess you could sue the company that built the coffee maker.

You carry a thermometer around with you? Odd habit, but then again my pockets are usually filled with random tools and geegaws. What do you measure with it, or is it part of an army knife?

Good/Fast/Cheap - Pick Two


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by jbmcb_
> 
> 
> 
> ...


Well there you are. That happy moment in many AAAC Interchange threads has been reached when the bone-headed and dim-witted achieve ascendancy. Adios.

Oh, as for the bit about the thermometer: it is a joke. The thermometer is kept in the office kitchen, not on my person. The literate members who are familiar with the writings of, for instance, S. J. Perelman, get such things. Others don't.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> Well there you are. That happy moment in many AAAC Interchange threads has been reached when the bone-headed and dim-witted achieve ascendancy. Adios.


Soo, I'm not invited over for coffee? 

Seriously, if the plaintiff in the McDonald's case had made a cup of coffee at home, spilled it on herself when it was a mere 150F (perfectly capable of producing 3rd degree burns, as the links I posted indicate,) what would her legal recourse be? Sue the coffee maker manufacturer? Crate & Barrel for making a coffee cup that has a huge opening on top where coffee can spill out? When does the liability end with the consumer's responsibility?



> quote:
> Oh, as for the bit about the thermometer: it is a joke. The thermometer is kept in the office kitchen, not on my person. The literate members who are familiar with the writings of, for instance, S. J. Perelman, get such things. Others don't.


Sorry for being dense, I'm used to hanging around engineers who can routinely pull out any seemingly random tool or mesurement device from their pocket.

Good/Fast/Cheap - Pick Two


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## J. Homely (Feb 7, 2006)

> quote:_Originally posted by jbmcb_
> 
> Seriously, if the plaintiff in the McDonald's case had made a cup of coffee at home, spilled it on herself when it was a mere 150F (perfectly capable of producing 3rd degree burns, as the links I posted indicate,) what would her legal recourse be? Sue the coffee maker manufacturer? Crate & Barrel for making a coffee cup that has a huge opening on top where coffee can spill out? When does the liability end with the consumer's responsibility?


When I heard about the McD's coffee suit years ago, I was along with everyone else, lamenting the demise of good sense and b**ching about tort reform, but once you hear the details, it's not really ridiculous.

Bottom line, it's just not reasonable to expect that a cup of coffee is going to be hot enough to do tissue damage. Of course people expect coffee to be hot. Lots of people are able to sip 'hot' coffee -- they know it's hot and they handle it appropriately. But there's a big difference between hot and scalding, and McD's knew the temp was exaggerated.

As for hitting the lottery -- after surgical bills, attorney fees and lost time, hardly. Besides, she tried to settle for a lousy $20K. There's still a legitimate argument to be made about the limits of McD's liability, but the case is hardly ridiculous.

I agree that punitive damages should not go to the plaintiff, though. I've been saying that for years.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by Yckmwia_
> 
> 
> 
> ...


Say I'm walking down the sidewalk listening to my iPod with my Etymotic headphones on. Guy on his bike runs me down while I'm on the sidewalk. Is it my fault for wearing headphones that block out all sound and not hearing him ringing his bell, or is it his fault for riding on the sidewalk in the first place?

Or do I just go after Apple and the maker of the headphones?


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by J. Homely_
> Bottom line, it's just not reasonable to expect that a cup of coffee is going to be hot enough to do tissue damage. Of course people expect coffee to be hot. Lots of people are able to sip 'hot' coffee -- they know it's hot and they handle it appropriately. But there's a big difference between hot and scalding, and McD's knew the temp was exaggerated.


Here's the deal. Hot coffee will burn you, hotter coffee will burn you, the hottest coffee you can make before it's steam, will burn you. That's because it's HOT.

dictionary.com:
Hot - 1. a. Having or giving off heat; capable of burning.

I read the testimonies about the brewing and holding temperatures, and the plaintiff's case was nonsense. The ideal brewing temperatures is just below boiling, 185F to 195F, and the ideal holding temperature is between 175F and 185F. See here:

And as for the 700 burn cases related to McDonald's coffee, how does that relate to coffee burn incidents at other restaraunts? Higher? Lower? How does it compare to the total number of McDonald's coffees served? A single statistic is rhetorically meaningless.

Good/Fast/Cheap - Pick Two


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## ChubbyTiger (Mar 10, 2005)

> quote:_Originally posted by Yckmwia_
> 
> 
> 
> ...


My goodness, man, calm down! I most certainly did not insult you or call you out or anything that warrents such a tone. As I stated, fairly neutrally I thought, I tested my personal coffee and it turned out to be ~165 deg F. I tried this little test because I thought that 135 seemed pretty low for serving a hot beverage and my test bore that out. Hence, I think that the 135 F quoted in the article was an exageration. Also, my coffe was _served_ at 165 F, not brewed. Having a difference of opinion is no reason to get snippy.

CT


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## Vladimir Berkov (Apr 19, 2005)

> quote:_Originally posted by bosthist_
> 
> Say I'm walking down the sidewalk listening to my iPod with my Etymotic headphones on. Guy on his bike runs me down while I'm on the sidewalk. Is it my fault for wearing headphones that block out all sound and not hearing him ringing his bell, or is it his fault for riding on the sidewalk in the first place?
> 
> Or do I just go after Apple and the maker of the headphones?


Its sort of hard to say. From the hypothetical I am not sure if either activity actually constitutes negligence at all.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by Vladimir Berkov_
> 
> 
> 
> ...


Riding your bike on the sidewalk is illegal and hitting a pedestrian with his back to will likely be considered negligent.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by jbmcb_
> 
> Here's the deal. Hot coffee will burn you, hotter coffee will burn you, the hottest coffee you can make before it's steam, will burn you. That's because it's HOT.
> 
> I read the testimonies about the brewing and holding temperatures, and the plaintiff's case was nonsense. The ideal brewing temperatures is just below boiling, 185F to 195F, and the ideal holding temperature is between 175F and 185F. See here:


The Bunn site also mentions that the ideal _serving_ temperature is between 155 and 175 degrees and it appears from visual inspection that none of the _holding_ devices are human laps. According to Bunn, McDonalds was serving their coffee too hot.


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## 16128 (Feb 8, 2005)

> quote:_Originally posted by Yckmwia_
> 
> 
> 
> ...


Certainly! You're nobody until someone appropriates a quote on AA!

*"Buy the best, and you will only cry once." - Chinese proverb*


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## Vladimir Berkov (Apr 19, 2005)

> quote:_Originally posted by bosthist_
> 
> 
> 
> ...


Assuming that the bike rider is negligent then, you still have to show that not just that the pedistrian's use of the headphones meant he couldn't hear the bike coming but that it constitutes negligence. I sort of doubt that you could ever show that. I bet you could easily show a custom that people often wear headphones while walking on the sidewalk.


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## bosthist (Apr 4, 2004)

You're missing the point completely. The bicyclist, like the banana peels, should never have been on the sidewalk in the first place. No banana peels, no man slipping and falling. Saying a guy who walks down the street reading a newspaper is negligent for slipping on banana peels which shouldn't be there is asinine.


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## Vladimir Berkov (Apr 19, 2005)

The problem is that your example and mine are not comparable. I have no problem with the ordinary system of negligence in which one party is at fault and the other is not (your example.) The problem comes when BOTH parties are negligent (my example.) 

If you want to stick with the bicycle example a better situation would be where a pedestrian is walking down the street with his eyes shut and headphones blasting heavy metal at max volume when he is negligently hit by a bicylist. In that situation how is it just that the pedestrian can recover considering that it was largely his behavior which is responsible for the accident in the first place due to his own negligence?


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by Vladimir Berkov_
> 
> The problem is that your example and mine are not comparable. I have no problem with the ordinary system of negligence in which one party is at fault and the other is not (your example.) The problem comes when BOTH parties are negligent (my example.)
> 
> If you want to stick with the bicycle example a better situation would be where a pedestrian is walking down the street with his eyes shut and headphones blasting heavy metal at max volume when he is negligently hit by a bicylist. In that situation how is it just that the pedestrian can recover considering that it was largely his behavior which is responsible for the accident in the first place due to his own negligence?


Well, since he's listening to heavy metal, you sue the band which has obviously included hidden messages suggesting that the listener commit suicide by walking in the street with his eyes closed.


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by bosthist_
> The Bunn site also mentions that the ideal _serving_ temperature is between 155 and 175 degrees and it appears from visual inspection that none of the _holding_ devices are human laps. According to Bunn, McDonalds was serving their coffee too hot.


Please show me the copy that said McDonald's was serving their coffee at 180F. The articles I read said they were holding at 180F. Even if they were serving at the low end of 150F, she would have received second or third degree burns from her spill, it only takes a couple seconds more than at 180F.

Last I checked, the drive through attendant wasn't the one who poured coffee all over that poor lady, and most cars sold in the US these days have perfectly servicable cupholders in the front seat.

Here's a later court case, where the plaintiffs sued Bunn because they spilled hot coffee on themselves and were burned. The court found that there was no evidence that 179F was an unusually high temperature for coffee to be served at. The meat of the case is about halfway down, an interesting read.

It looks like the McDonald's lawyers did an awful job.

Good/Fast/Cheap - Pick Two


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## ChubbyTiger (Mar 10, 2005)

> quote:It looks like the McDonald's lawyers did an awful job.


I think it would also be accurate to say that the plantiff's lawyers did an unethical job. Oh, wait, they're _trial lawyers_. Never mind.

CT

Fabricati diem, pvnc. (loose translation, To Serve and Protect) -- Sign above the door of the City Watch House, Ankh-Morpork.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by ChubbyTiger_
> 
> 
> 
> ...


How exactly were the plaintiff's attorneys unethical?

Updated coffee test: at the end of the brew cycle coffee in the pot was 164 degrees. Put into mug, stuck my finger in, no burns after seven seconds. According to jbmcb, I should have had second to third degree burns, to wit: "Even if they were serving at the low end of 150F, she would have received second or third degree burns from her spill, it only takes a couple seconds more than at 180F".

I guess my experiment bears out "An affidavit submitted by Kenneth R. Diller, a professor of biomedical and biomechanical engineering, [which] observed that "full thickness third degree burn injuries would require 60 seconds of exposure [to a liquid at] 140 degrees F, but only 3 seconds of exposure at 179 degrees F." (from the link so kindly provided by jbmcb)

I had plenty of time to (a) pull my finger out of the coffee or, if it been on my clothing to (b) pull my clothing away from my body.

I love science!


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by bosthist_
> Updated coffee test: at the end of the brew cycle coffee in the pot was 164 degrees. Put into mug, stuck my finger in, no burns after seven seconds.


So you tested the temperature of the coffee, poured it into a cup, then stuck your finger in to see if it would burn? I'll give you three guesses to find the two errors in your methodology.

I love science as well, but getting it right can be a baldness-inducing excersize


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## Fogey (Aug 27, 2005)

> quote:Say I'm walking down the sidewalk listening to my iPod with my Etymotic headphones on. Guy on his bike runs me down while I'm on the sidewalk. Is it my fault for wearing headphones that block out all sound and not hearing him ringing his bell, or is it his fault for riding on the sidewalk in the first place?
> 
> Or do I just go after Apple and the maker of the headphones?


 Sue God for creating the Universe and its physical laws.. That's some pretty serious negligence on His part.


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## bosthist (Apr 4, 2004)

> quote:_Originally posted by jbmcb_
> 
> 
> 
> ...


My methodology is just as sound as most of the "studies" quoted here purporting to be able to assess things like national intelligence, quality of higher education, and any number of other subjects. In other words, it is a joke.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by jbmcb_
> 
> 
> 
> ...


Different facts, different defendants. In _McMahon_ the plaintiffs sued the manufacturer of the Styrofoam cup and the coffee maker on a products liability theory; they did not sue the retailer, an odd omission that Justice Easterbrook notes several times in the opinion. After the cup manufacturer settled, the plaintiffs proceeded against Bunn-O-Matic. When one cuts through Easterbrook's pointless pontificating on irrelevant matters (that's his style), one finds that the legal basis for affirming the District Court's order granting Bunn's motion for summary judgement is perfectly straightforward: the plaintiffs failed to support their products liability claim with sufficient competent evidence to create a triable issue of fact to be submitted to the jury. Specifically, the Court held that plaintiffs' expert affidavit was deficient under the _Daubert_ test; thus, it was inadmissible and "without it the plaintiffs have no evidence to support this theory of design defect." (_McMahon v. Bunn-O-Matic, Corp._ (7th Cir. 1997) 150 F.3d 651, 658.) So you have the wrong end of the stick: Defense counsel didn't do a poor job in _Liebeck_; plaintiffs' counsel did a poor job in _McMahon_.

For those with eyes to see, the interesting part of the decision is the litany of similar, reported cases cited by the court at p. 654. As the court notes, most of these cases were dismissed on the defendant's motion for summary judgement; two cases, including _Liebeck_ survived summary judgement. Summary judgement is generally a fact intensive inquiry; thus, these cases merely confirm the legal truism that each case turns upon its particular facts. It follows that when a case like _Liebeck_ comes along it is not the Fifth Horseman of the Apocalypse let loose upon innocent corporate America. It is simply a confirmation that the civil justice system has fulfilled its promise to view each case on its own merits. This may come as a shock to some, but there it is. Sorry.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by ChubbyTiger_
> 
> 
> 
> ...


Here is a link to the Arizona Rules of Professional Conduct:

https://www.law.cornell.edu/ethics/az/code/

And here is a link to the ABA Model Rules of Professional Conduct:

https://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM

Please, do all practicing lawyers a favor and turn that finely-honed, precise and agile, scientific mind of yours to the task of demonstrating how plaintiff's counsel in _Liebeck_ violated, in any manner whatsoever, any applicable ethical rule in his representation of his client. All of us, lawyer and non-lawyer alike, will greatly benefit from your deep and vital thoughts on this pressing issue. I have it on good authority that the members of the Arizona trial bar are, each of them, quivering with dread as they await your judgement and doom. Such are the hazards of professional life. Proceed, Fat Cat, proceed.

"Why was I born with such contemporaries?." Oscar Wilde.


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## Fogey (Aug 27, 2005)

> quote:
> "Why was I born with such contemporaries?." Oscar Wilde.


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> So you have the wrong end of the stick: Defense counsel didn't do a poor job in _Liebeck_; plaintiffs' counsel did a poor job in _McMahon_.


My analysis was based on the seemingly unrebutted claim during the Liebeck trial, that 180F was an unusually high temperature for holding coffee. In McMahon, the defendant was able to establish that 180F was a perfectly acceptable and common holding temperature throughout the industry, citing, among other sources, the ANSI specification for making coffee. How could McDonald's be singularly negelegent in serving coffee too hot, when their process falls square within industry standards? Wouldn't ANSI be culpable in this case?



> quote:Thus, when a case like _Liebeck_ comes along it is not the Fifth Horseman of the Apocalypse turned lose upon innocent corporate America. It is simply a confirmation that the civil justice system has fulfilled its promise to view each case on its own merits. This may come as a shock to some, but there it is. Sorry.


I don't think it was a bad precedent, I think it was poorly litigated on McDonald's part. The two main points of the plaintiff's case in Liebeck could have been discredited easily:

1. McDonald's served their coffee at a dangerously high temperature, outside the norms of the industry. The ANSI specification, and the reccomendations of the coffee makers and coffee distributors cited in the Braun case, could have sunk this argument.

2. McDonlads did not act after over 700 complaints of their coffee being too hot and burning people. A lesson in statistics is requried for this one, 700 compalaints out of X*1,000,000 cups of coffee served (where X is probably in the hundreds) is not statistically relevent. If it was a systemic problem, you would probably see tens of thousands of complaints. You would also have to look at how many complaints were received by other fast food and drive-through window coffee shops, to see if their rate was substantially higher.

Good/Fast/Cheap - Pick Two


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## Yckmwia (Mar 29, 2005)

_Originally posted by jbmcb_



> quote:My analysis was based on the seemingly unrebutted claim during the Liebeck trial, that 180F was an unusually high temperature for holding coffee. In McMahon, the defendant was able to establish that 180F was a perfectly acceptable and common holding temperature throughout the industry, citing, among other sources, the ANSI specification for making coffee. How could McDonald's be singularly negelegent in serving coffee too hot, when their process falls square within industry standards? Wouldn't ANSI be culpable in this case?


The plaintiff's claim in _Liebeck_ was not only that McDonald's held its coffee at an unusually high temperature, but also that the holding temperature was _unreasonable._ This is an important legal distinction. An entire industry practice may be found to legally unreasonable; but that was not the issue in _Liebeck_. Plaintiff's claim was that McDonald's holding temperature of 180 to 190 degrees was unreasonable in light of the company's knowledge of the risk of harm the practice created for its customers, particularly its drive-through customers. This claim did not go unrebutted; it was accepted by the trier of fact, which rejected McDonald's contention otherwise.



> quote:McDonlads did not act after over 700 complaints of their coffee being too hot and burning people. A lesson in statistics is requried for this one, 700 compalaints out of X*1,000,000 cups of coffee served (where X is probably in the hundreds) is not statistically relevent. If it was a systemic problem, you would probably see tens of thousands of complaints. You would also have to look at how many complaints were received by other fast food and drive-through window coffee shops, to see if their rate was substantially higher.


McDonalds presented this argument at trial (and Liebeck no doubt presented contrary expert testimony.) The jury rejected it, in light of the risk of severe harm caused by McDonald's practice, and the insignificant cost of reducing that risk.



> quote:McDonald's served their coffee at a dangerously high temperature, outside the norms of the industry. The ANSI specification, and the reccomendations of the coffee makers and coffee distributors cited in the Braun case, could have sunk this argument.


McDonald's did make this argument, as did the defendant in _McMahon_. The crucial difference is that the _McMahon_ plaintiff did not offer any competent evidence to rebut Bunn-O-Matic's contention; Liebeck did, and the jury found Liebeck's evidence more persuasive than McDonald's.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## jbmcb (Sep 7, 2005)

> quote:_Originally posted by Yckmwia_
> Plaintiff's claim was that McDonald's holding temperature of 180 to 190 degrees was unreasonable in light of the company's knowledge of the risk of harm the practice created for its customers, particularly its drive-through customers.


Again, the unreasonableness claim hinges on the 700 previous complaints. 700 complaints over ten years out of hundreds of millions of cups of coffee served; it's just not relavent. McDonald's idiot "expert" didn't seem to get the point across to the jury that, just because there were complaints of burns, didn't mean that it was McDoanld's policy of keeping coffee at 190F was the root cause of these burns. The jury didn't seem to want to accept this rather harsh logic, though.



> quote:
> McDonalds presented this argument at trial (and Liebeck no doubt presented contrary expert testimony.) The jury rejected it, in light of the risk of severe harm caused by McDonald's practice, and the insignificant cost of reducing that risk.


Again, all things considered, the risk was miniscule, if signifigant at all. You're more likely to die in a car accident then get burned by McDonald's coffee (as a ratio of car drivers to car deaths, compared to McDonald's coffee drinkers to those who have complained about being burned by McDonald's coffee.)



> quote:McDonald's did make this argument, as did the defendant in _McMahon_. The crucial difference is that the _McMahon_ plaintiff did not offer any competent evidence to rebut Bunn-O-Matic's contention; Liebeck did, and the jury found Liebeck's evidence more persuasive than McDonald's'.


I couldn't find who the plaintiff's expert was on this subject in Liebeck, but I'm not sure how the jury came to the conclusion that industry standards documents are less persuasive than the plaintiff's expert.

I guess it boils down to weather or not one thinks that serving 180F coffee is an unreasonable practice (no pun intended 

To me, if the industry standard is in that range, and the coffee maker manufacturers and coffee distributors reccomend that range, and coffee and tea at home that is in that range or even higher, then it is a perfectly reasonable serving temperature.

Good/Fast/Cheap - Pick Two


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## Yckmwia (Mar 29, 2005)

Well, that settles that. This matter is exhausted, unless someone wants to expand the discussion to cover other issues. I'm off.

"There are some people that if they don't know, you can't tell 'em." Louis Armstrong.


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## ChubbyTiger (Mar 10, 2005)

> quote:_Originally posted by Yckmwia_
> 
> I'm off.


Thank the Lord for small favors.


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## Yckmwia (Mar 29, 2005)

> quote:_Originally posted by ChubbyTiger_
> 
> 
> 
> ...


I see that you have yet to accept my invitation to substantiate your idiotic comments regarding the "unethical" conduct of Ms. Liebeck's attorney. Life is full of disappointments, isn't it?

"Why was I born with such contemporaries?" Oscar Wilde.


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## Trenditional (Feb 15, 2006)

> quote:_Originally posted by NewYorkBuck_
> 
> 
> 
> ...


This is starting in elementary school today. I've heard stories of children who imitate jumping rope (without a rope) because the "educated ones" don't want those less coodinated children to feel inferior if they can't jump rope. I don't understand why this mentality of lets make everyone feel special came from? This isn't teaching kids to correct mistakes and or work harder to improve themselves.


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## J. Homely (Feb 7, 2006)

> quote:_Originally posted by Trenditional_
> 
> 
> 
> ...


It's the parents' job. Both to make kids feel special and to teach them to take responsibility for developing themselves.


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