STATE OF THE UNION AND RECOMMENDATIONS

For example, one placing a cup of hot coffee between one's legs, spilling it there, and thereby scalding one's thighs, is not the fault of the maker of that coffee.

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For example, one placing a cup of hot coffee between one's legs, spilling it there, and thereby scalding one's thighs, is not the fault of the maker of that coffee.

Well, when the cup of coffee is a Hundred degrees hotter than recommended for human consumption, the fault probably lies equally with he/she who spilled it, and with the preparor of that coffee; not the manufacturer of the coffee specifically.

Cycloptichorn

Bad Analogies
by PG
To Wings & Vodka's dread, I suspect, I haven't quite finished with the McDonald's coffee case, which probably has the same Godwin's Rule-like properties on a blawg that abortion does on political blogs. While reading the otherwise useful comments to my first post, I noticed the shortage of good comparisons to this case.

Most of the attempted analogies fail because they ignore a distinctive aspect of Liebeck, which may be peculiar to the food and beverage industry: that it was necessary for the product to be at a third-degree-burn causing temperature while being manufactured, but it had to cool down considerably before being fit for consumption.

Ted tries to draw a parallel to his having gouged himself with a knife while cutting a bagel. The problem here is that household knives are never meant to be applied to skin. McDonald's coffee, on the other hand, is intended to be put into contact with one's most delicate skin, at the mouth's lips and interior. Similarly, Deoxy's examples of automobiles and airplanes also lack this feature of Liebeck. Automobiles are never meant to hit other large objects; airplanes are never meant to crash.

Guns, hot car engines and running lawnmowers pose a better comparison. When a homeowner buys a gun, she intends for it to cause injury when she fires it at someone. However, when guns have fired because the safety must be off to remove the bullets (as in this case), the gun has caused an injury that is not compatible with its purpose, and the manufacturer may be sued for the defective design.

Car engines and lawnmower blades also are situational hazards. One can safely touch a car engine as long as it isn't hot, and one can (more or less) safely touch lawnmower blades as long as they aren't in motion. Engines must heat in order for the car to move, and blades must whir in order to cut grass, but these are dangerous when in operation and shortly thereafter. The coffee, on the other hand, should not be dangerous during its consumption.

The facts of Liebeck are: The plaintiff was a passenger (not the driver) in a car. She purchased the coffee and carried it with the lid on until the car stopped. When the car was no longer in motion, she presumably deemed it safe to remove the lid and drink the coffee. However, at that time the coffee was still at a high temperature that certainly would have burned her mouth, as it did cause third degree burns to the skin of her pelvis and thighs.

To summarize this incredibly long-winded argument, the difficulty with the McDonald's coffee is that it is dangerous upon being served to customers. Coffee must be at high temperatures -- minimum 170 degrees F -- in order to be brewed properly, but the temperature must go down by at least 30 degrees in order to be drunk without scalding one's own mouth. If coffee manufacturers are in a dilemma -- the coffee must be burning hot during production, yet not upon purchase -- the obvious solution seems to be to make the coffee with the necessary heat, then wait for it to cool down enough not to cause serious burns before giving it to customers.

Prepared and served are two very different things. If you tried to drink a 212 degree cup of coffee, you'd probably burn your throat and stomach; it might even result in death.
Yes, if anyone is dumb enough to drink or pour or touch any 212 degree drink or soup or whatever, it will burn them. Surely, it's reasonable to expect adults not to drink or pour or touch any 212 degree drink or soup or whatever until it cools down. Surely it's reasonable to expect any adult to be able to tell when something is too hot without drinking it or putting it between their legs. Any adult (and/or their lawyer) who doesn't follow that dictim has one hell of a nerve blaming any part of the damage done on anyone other than her or himself.

Gad, whatever has happened to the legal principle of personal responsibility?

I learned that principle the easy way at the age of three. But I guess by contemporary legal standards that make me precocious. Truth is my mommy told me! Mommy said, "Son, wait 'til that soup cools down before you eat it, or you will burn your tongue."

Hmmmm ... maybe my mommy was precocious!
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The problem wasn't that the coffee was made too hot, it is that it was served too hot. This is the fault of the Preparor, not the drinker; if the plaintiff had attempted to drink the coffee, it would have undoubtedly burned her mouth and throat.
No, it is the fault of the drinker -- or in the legal case, the hold-it-between-her-thighs-er. It is not the fault of the preparer or server or their employer. Adults the world over are well acquainted with how to painlessly determine that something is too hot and too cold. They simply sniff it or hold their hand near it. If it is too hot, they wait for it to cool down.

If their mommy didn't tell them that, then they learned it the hard way, long ago all by their little selves, before they became adults.
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Cycloptichorn

There is no way the coffee was prepared hotter than boiling and anybody who has made coffee on a campfire has had boiled coffee and most of us have poured it right out of that pot into the cup and yes, it is hot and we LIKE it that way. And yeah sometimes we have to wait a minute or two for it to cool. People who buy coffee to go want it extra hot so it won't get too cool before it is drunk.

I like getting those steaks or fajitas still sizzling on a metal platter too. That could also cause some damage if I decided to dump it into my lap.

I do believe that awards of a size to actually hurt companies and corporations who are negligent are appropriate, but I think there should be great standards set to meet the criteria of negligence, and stupidity of the user shouldn't generally be one of them.

Cycloptichorn

The problem wasn't that the coffee was made too hot, it is that it was served too hot. This is the fault of the Preparor, not the drinker; if the plaintiff had attempted to drink the coffee, it would have undoubtedly burned her mouth and throat.

I do understand that this is a popular way to take shots at trial lawyers, however.

And let's consider a hypothetical:

Vicky walks into a McDonalds (why not?), and before she orders her food, she walks to the bathroom to wash her hands. She turns on the hot water, cause she likes to wash her hands in hot water, but unbeknownst to Vicky, the hot water heater had just been replaced, and accidentally set for too hot a temperature. The scalding hot water (170 degrees, let's say) caused third degree burns on her hands and wrists. (You can substitute Vicky's 8 year old son for the victim if you want.)

Now, it shouldn't be necessary to place a "Caution! Hot!" sign on every hot water tap, and it's also true that normal people know it's hot, but they don't expect it to be THAT hot.

And let's consider a hypothetical:

Vicky walks into a McDonalds (why not?), and before she orders her food, she walks to the bathroom to wash her hands. She turns on the hot water, cause she likes to wash her hands in hot water, but unbeknownst to Vicky, the hot water heater had just been replaced, and accidentally set for too hot a temperature. The scalding hot water (170 degrees, let's say) caused third degree burns on her hands and wrists. (You can substitute Vicky's 8 year old son for the victim if you want.)

Now, it shouldn't be necessary to place a "Caution! Hot!" sign on every hot water tap, and it's also true that normal people know it's hot, but they don't expect it to be THAT hot.

Ticomaya wrote:

And let's consider a hypothetical:

Vicky walks into a McDonalds (why not?), and before she orders her food, she walks to the bathroom to wash her hands. She turns on the hot water, cause she likes to wash her hands in hot water, but unbeknownst to Vicky, the hot water heater had just been replaced, and accidentally set for too hot a temperature. The scalding hot water (170 degrees, let's say) caused third degree burns on her hands and wrists. (You can substitute Vicky's 8 year old son for the victim if you want.)

Now, it shouldn't be necessary to place a "Caution! Hot!" sign on every hot water tap, and it's also true that normal people know it's hot, but they don't expect it to be THAT hot.

I figure that when it comes out of the spicket steaming (at 170 degrees that's what it will do), I better turn on some cold water to cool it down some. When the spickets are separate for hot and cold. I shut off steaming water and endure cold. But in either case, I do not think it fair or rational to hold either the owner or the installer responsible if I fail to take such precautions and burn my hands as a consequence.

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

Is there a useful parallel here between tort law and national security that ought to be considered?

Here's another hypothetical (I hope).

The government fails to give adequate warning to vacate the Sears Tower in Chicago before it's hit by an airliner piloted by terrorists. Further suppose that failure is proven due to Homeland Security and/or NSA incompetence.

Ought families of deceased caused by that hit be entitled to sue the government for failure to warn that the building is about to get too hot?

Let's modify that hypothetical a little.

Suppose both Homeland Security and NSA did their jobs competently, but were knowingly denied by rules adopted by Congress the ability to do what they had to do to give adequate warning.

Ought families of deceased caused by that hit be entitled to sue the government for knowingly denying Homeland Security and NSA the ability to do what they had to do to give adequate warning?