So if it is impossible to serve desirable coffee at a temperature that will not cause burns? No coffee for anyone?
Do you have any studies showing that the majority of people prefer to drink their coffee at 185 degrees?
Of course not. But as I have brought up, it should be served at a minimum of 160 degrees, so that if you want cream and sugar it will still be nice and piping hot when you drink it closer to 150 degrees.
That 160 degree temperature would still have been enough to cause a minimum of second degree burns.
1) Would you care to cite proof that this is the case when you spill the liquid, and not just when you immerse a body part in it?
2) 2nd degree burns, while bad, are a significantly different and less serious beast than 3rd degree burns.
1) I would love to, but I honestly don't have time to search for data properly. I'm posting between pushing pacifiers back into mouths and various other things. If someone could lend a hand and look for relevent data I would certainly appreciate it. However in the accident in question, we are essentially talking about immersion. The damage was so severe because the liquid was trapped against the skin by sweatpants and a heavily insulated seat, which would to my mind be very similar to immersion. Again though, 160 degree liquid causing second degree burns in such a situation is actually quite an underestimate of the damage, based on what Feral posted. Intentionally so.
2) They are, but again that doesn't matter. A defective product which injures me makes the seller liable. A dangerous product which injures me, but is not defective, does not make the seller liable, even if it injures me more severely than I would have expected. Further, a consumer of coffee should be perfectly aware that it might likely be served at a temperature such as 180 degrees.
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And on top of that, 180 degrees is not an unusual temperature at which to serve coffee, and it is incumbent on the consumer to be aware of the dangers of such a common but dangerous item.
The temperature might not be unusual on it's own. However, serving coffee in a drive thru represents a special circumstance. That's one reason why we don't have drive thru liquor, even though bars sell liquor all the time.
The liquor itself may not be "defective," but serving people open liquor in a drive-thru window certainly is.
This could be a point. I would argue against, but I think more importantly it is moot. This is not what she sued on. She sued on the temperature of the coffee making it defective. If that is not true, the suit must be found for the defendant.
1) I would love to, but I honestly don't have time to search for data properly. I'm posting between pushing pacifiers back into mouths and various other things. If someone could lend a hand and look for relevent data I would certainly appreciate it. However in the accident in question, we are essentially talking about immersion. The damage was so severe because the liquid was trapped against the skin by sweatpants and a heavily insulated seat, which would to my mind be very similar to immersion. Again though, 160 degree liquid causing second degree burns in such a situation is actually quite an underestimate of the damage, based on what Feral posted. Intentionally so.
2) They are, but again that doesn't matter. A defective product which injures me makes the seller liable. A dangerous product which injures me, but is not defective, does not make the seller liable, even if it injures me more severely than I would have expected. Further, a consumer of coffee should be perfectly aware that it might likely be served at a temperature such as 180 degrees.
1) That's not what we refer to when we say immersion. When we say immersion, we are referring to the fact that the liquid can recover any heat that is lost to the target, maintaining a stable temperature. Or, to put it another way, french fries will cook properly if you put them in a deep fryer. They will not cook properly if you simply dump a few quarts of hot oil on them and walk away.
2) It's not like McDonalds is making the coffee from scratch using guess work and feeling. They use electronic vessels that set the coffee at a reprogrammed temperature.
This could be a point. I would argue against, but I think more importantly it is moot. This is not what she sued on. She sued on the temperature of the coffee making it defective. If that is not true, the suit must be found for the defendant.
It's entirely possible that the coffee could be defective from the standpoint of someone having to add cream and consume the product in their car, and not defective when you're casually sitting at a table.
3) You as the purchaser of the coffee cannot know how long ago brewing occurred, along with all the other variables associated with the change in the coffees temperature from the brewing temperature(which you are also unaware of).
Therefore: the reasonable expectation for the temperature of the coffee is anywhere up to the brewing temperature..
Pick a point, and refute it. Why would it be unreasonable to expect coffee to be that hot?
Coffee vendor is in best position to know the temperature of the coffee, therefore he should bear the responsibility of serving it at a safe temperature.
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
We have a great system! Mandatory Binding Arbitration!
1) I would love to, but I honestly don't have time to search for data properly. I'm posting between pushing pacifiers back into mouths and various other things. If someone could lend a hand and look for relevent data I would certainly appreciate it. However in the accident in question, we are essentially talking about immersion. The damage was so severe because the liquid was trapped against the skin by sweatpants and a heavily insulated seat, which would to my mind be very similar to immersion. Again though, 160 degree liquid causing second degree burns in such a situation is actually quite an underestimate of the damage, based on what Feral posted. Intentionally so.
2) They are, but again that doesn't matter. A defective product which injures me makes the seller liable. A dangerous product which injures me, but is not defective, does not make the seller liable, even if it injures me more severely than I would have expected. Further, a consumer of coffee should be perfectly aware that it might likely be served at a temperature such as 180 degrees.
1) That's not what we refer to when we say immersion. When we say immersion, we are referring to the fact that the liquid can recover any heat that is lost to the target, maintaining a stable temperature. Or, to put it another way, french fries will cook properly if you put them in a deep fryer. They will not cook properly if you simply dump a few quarts of hot oil on them and walk away.
2) It's not like McDonalds is making the coffee from scratch using guess work and feeling. They use electronic vessels that set the coffee at a reprogrammed temperature.
1) As cutely condescending as this paragraph is, the CPSC link actually refers to a mere two second contact with only 150 degree water causing third degree burns, meaning my estimate of 160-170 degree coffee, and merely second degree burns, would be quite conservative really. Almost intentionally so.
2) And yet again, that is not relevant. Coffee is regularly served at a dangerous temperature. As such consumers can not assume it will be served to them at an un-dangerous temperature, and must act with apropriate caution, regardless of the reason that this particular cup was served so hot.
This could be a point. I would argue against, but I think more importantly it is moot. This is not what she sued on. She sued on the temperature of the coffee making it defective. If that is not true, the suit must be found for the defendant.
It's entirely possible that the coffee could be defective from the standpoint of someone having to add cream and consume the product in their car, and not defective when you're casually sitting at a table.
It is not. If I am casually sitting at a table and recognize that spilling coffee on myself could cause serious damage, I have no excuse to place the same coffee between my knees in a car and claim I did not realize it could spill on me and cause serious damage.
If a product is not defective, my using it in a precarious situation does not make it defective.
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
Dang! You've got me now! Too bad I am not allowed to occasionally disagree with the findings of that system and then express that disagreement! Oh wait... I am!
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
We have a great system! Mandatory Binding Arbitration!
So one cup of coffee? Alright read over this document with your lawyer, sign here and here, and it will be right up!
What if the product (in this case hot coffee) was inherently dangerous (rather then defective) to a small unknown portion of the population (people who accidental spill it on themselves seconds after receiving it) and the company continues to sell it anyway despite the danger because they like making money on it. The consumers are not misusing the product and the chance and knowledge of the danger is so vanishingly small the general public would not be aware of the serious nature, therefor by knowingly selling something dangerous despite the knowledge a small number of people will be hurt the company assumes the risk those people will seek damages. The company can just factor it into the cost of doing business or get insurance against the unlikely event. It is not going to bankrupt them entirely.
Also, everyone else does it is not an excuse when people get hurt. That is a good excuse very rarely.
Void Slayer on
He's a shy overambitious dog-catcher on the wrong side of the law. She's an orphaned psychic mercenary with the power to bend men's minds. They fight crime!
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
We have a great system! Mandatory Binding Arbitration!
So one cup of coffee? Alright read over this document with your lawyer, sign here and here, and it will be right up!
What if the product (in this case hot coffee) was inherently dangerous (rather then defective) to a small unknown portion of the population (people who accidental spill it on themselves seconds after receiving it) and the company continues to sell it anyway despite the danger because they like making money on it. The consumers are not misusing the product and the chance and knowledge of the danger is so vanishingly small the general public would not be aware of the serious nature, therefor by knowingly selling something dangerous despite the knowledge a small number of people will be hurt the company assumes the risk those people will seek damages. The company can just factor it into the cost of doing business or get insurance against the unlikely event. It is not going to bankrupt them entirely.
Also, everyone else does it is not an excuse when people get hurt. That is a good excuse very rarely.
I am sorry, but scalding hot coffee is inherently dangerous to all consumers that buy it, regardless of whether they spill it upon themselves; the danger is there. A consumer of coffee need not misuse the product to be aware that it could cause serious damage.
Yet again, to be liable for the damage caused by a product, the seller or manufacturer must be shown to be negligent. However if the product is dangerous by its nature, such as the heat in coffee, the sharpness of a knife, the speed of a snowmobile, or the toxin of beer, the consumer is expected to be aware of this risk, and manage it themselves.
BTW, the Business Week article I linked suggests adopting a Swedish-style malpractice board system, where instead of litigating, you first file your complaint to the state board. They look at your case and determine whether malpractice was a cause, and if so, they dispense damages based on a schedule of fees.
Having a schedule of fees for medical injury is the easy part - we already do that in California (and as far as I know most other states) for workers comp. Lose a finger, get $X. Lose your hand, get $Y. Etc.
That said, the Swedish system gives the patient (or physician, I think, but I don't remember for sure) the option to litigate if they are still dissatisfied after the board's decision. The overwhelming majority don't go to trial, through.
Except there is no problem with medmal in the US. It's the least successful of the personal injury torts.
Does it being the least successful mean there isn't a problem? Are the cases that are going to court and winning huge the one with the most egregious faults? Would it possibly be better for society if more people were getting smaller awards and doctors saw losing a court case as something to learn from rather than a career ending event?
I haven't looked into the Swedish system, how do they determine if the doctor was at fault?
Right, the problem with the system isn't in the ratio of winning doctors vs losing doctors, it's that it's essentially random. Cases where egregious errors occur get nothing, cases where it's obvious there was no wrongdoing win millions.
(Yes, I just referenced the AEI. Hope the devil has wooly unmentionables.)
I realize that this is several pages old, however, I think it is important to address. This report is kind of interesting, but I don't think the conclusions are valid. They look at all of medicine as a whole when in reality I think we need to look at different specialties individually.
Look at cerebral palsy. It is virtually never caused by a birth injury, but there is a whole industry of medmal lawyers that just sue the doctors supervising delivery of children with CP. They do this because they can parade the kid through court and win on a regular basis because 50 years ago doctors did think CP was caused by birth injury and apparently the general public would rather believe the doctors of 50 years ago than the ones of today. So while maybe only 25% of medmal cases in general are incorrectly given awards, there are specific diagnoses where that number is vastly different.
The other thing that document doesn't address at all is that just because a person was injured negligently it doesn't mean that they were injured negligently by the particular doctor named on their suit or all of the doctors named on their suits. There was a case recently where a medmal lawyer filed a medmal suit that included the architect and construction company because they argued that the layout of the hospital contributed to the delay in c-section that injured the baby. It not uncommon for medmal suits to name every doctor the patient has seen since the disease process could possibly have started. Just because one of those doctors did something negligently, the other doctors shouldn't also be punished. And while it may not be a tort law issue, if one of the doctors did something clearly negligent the insurance company is going to want to settle. If they are planning on settling anyways they aren't going to bother spending the time and money to get the other doctors names removed from the suit. Then the other doctors have to pay higher medmal insurance rates for the rest of their lives.
Kistra on
Animal Crossing: City Folk Lissa in Filmore 3179-9580-0076
I think you are not understanding how this works. Again, if the product is defective, and being defective caused an injury McDonalds is liable for that injury regardless of the degree of the injury. If the product is dangerous and likely to cause severe injury, but is not defective, McDonalds would not be liable, even if the injury caused is a level more severe than commonly expected.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
Dang! You've got me now! Too bad I am not allowed to occasionally disagree with the findings of that system and then express that disagreement! Oh wait... I am!
I'll post these again, because it seems to be continually ignored by people who are obsessed with the numbers 160 and 185 and care more about the technicalities of immersion vs spilling instead of the topic of the thread:
Everyone take two seconds to think about what it is you are trying to accomplish here.
The real issue is how popular misconceptions about the McDonald's hot coffee case (ie, she was holding coffee between her legs while driving, she sued for millions of dollars, the burns she suffered were in line with what's probably happened to everyone at some point when they spill a cup of hot liquid) are commonly used to demonstrate that tort law in the United States is totally broken.
Let's say (for the sake of argument) that the jury got it wrong in this case, and that McDonald's should not have been held liable. The lawsuit was still far, FAR from the pinnacle of frivolous lawsuits that it is viewed as in popular culture, which is really what the movie is trying to address, as far as I can tell.
So, anyway, this thread is called "hot coffee." It's not like we're on a tangent with this.
We are, though. Here was the legal question that was to be considered:
"Should a company that provides a product that's known to be moderately dangerous be held liable if it turns out to be much more dangerous than a reasonable person would believe?"
That's (IMO) a valid question to raise with a lawsuit, even if it's found that the company isn't liable.
Disagreeing with the ruling is significantly different than citing the case as a textbook example of a frivolous lawsuit, as commonly happens. Again, she had suffered damages and there was an argument to be made (whether or not you think it should hold up in court) that McDonald's was partially at fault. This is what tort was made for, even if in this specific case (for the sake of argument), the jury got it wrong.
We've debated the merits of a 17-year-old lawsuit (that eventually got settled out of court!) for 13 pages now, as though it's the absolute best example we have of tort law gone wild. Again, regardless of how you feel about the outcome of it, it's difficult to call it "frivolous," given that there were significant damages and at least some argument to be considered that McDonald's was partially responsible. Whether or not she should have been given an award, it's not as though the lawsuit was founded in fraud or greed, as it's popularly portrayed.
And I (and the jury) disagree. Burns so severe as to require debridement and two years of care are not an expected or acceptable outcome of an event that's as statistically probable as somebody spilling coffee.
Except we don't have any evidence that the jury agrees with you. All we know is that they thought McDonald's had the better case, but then got mad at them for seeming not to even care at all that someone got hurt, and so ruled against them to teach them a moral lesson.
Documented decision on other cases, however, repeatedly and consistently disagree with you, or disagree that it matters. You can sue for a 2nd degree burn, or even a scalding, you know? You can sue for minor cut, and win, if it was caused by negligence. The degree of of harm is not and has never been a means to determine negligence. Which, of course, makes sense. You can't decree negligence out of thin air just because the accident was so nasty. There has to be, you know, negligence. A defect. Something that wasn't what it should have been. Showing pictures of her burned 'giney says nothing at all about whether the coffee was defective, or damned perfect. You have to talk about the coffee, not the accident, to make your case about it being defective. This standard has never been successfully challenged. As Feral pointed out, if you can show it was defective/negligently served, then you can factor in the severity of the accident as an argument as to just how negligent it was.
Your melodrama does not make you any less incorrect. If I negligently design a defective product that causes second degree burns, but not third, are you saying then that I'm not liable? Of course not, because the degree of the burn says nothing at all about whether or not I was negligent, or whether the product was defective. Period. All it says it how bad my negligence or defectiveness is, once you've actually proven negligence or defect.
also, 160 is not 185, etc. etc. If the woman had appeared before the jury with significantly less vicious injuries, would they have still found in her favor?
Perhaps, but what seems even more clear is that if McD's had better managed their expert testimony on statistics, then McD's would have won even with the skin grafts.
Just because any kind of harm is possible does not mean the company is liable. Its possible you might get indigestion when you eat at McDonalds, its also possible you might get horrible food poisoning, but just because both of them are "upset tummies" doesn't mean they're both equally valid lawsuits.
Actually, you're 100% wrong here. I mean, sure, if the extent of risk is so small that there aren't any significant damages, then liability is a moot point. But you are still liable for any damage that can be shown, even if it's just making some scared or giving them a slight ache for a few minutes or causing them to break their favorite spoon. I'm sorry, but your idea of how the law works on these matters is completely backwards. So long as you can show that it resulted from negligence or defect, indigestion and food poisoning only differ in degree. They do not determine liability. They may only determine the extent of the damages.
I mean, this is really extremely simple, basic reasoning, and kind of frustrating to see people argue against it so vehemently. If I throw a rock and it cuts your arm, that's my fault. If I throw a rock and it kills you, that's my fault. The degree of damage says absolutely zero, nothing whatsoever, about whether or not the damage was my fault. The fact that I threw the rock at you is why it's my fault. The only way the damage is a factor is if I totally miss and you didn't even see me throw it, in which case there isn't anything to fault. However, 1st degree, 2nd degree, even just coffee hot enough to make you say "ow," all of these are damages we might find someone at fault for. The degree cannot and does not tell us whose fault it is.
The temperature might not be unusual on it's own. However, serving coffee in a drive thru represents a special circumstance. That's one reason why we don't have drive thru liquor, even though bars sell liquor all the time.
The liquor itself may not be "defective," but serving people open liquor in a drive-thru window certainly is.
You tried to steamroll past this point before, so I'll just keep bringing it up:
Drive-thru liquor stores are illegal (well, in most places). That is a huge difference. You aren't even talking about tort anymore.
If we make it illegal to serve coffee above 150 or whatever, then obviously McD's has no defense. Wonder why such a law has never happened...
Your melodrama does not make you any less incorrect. If I negligently design a defective product that causes second degree burns, but not third, are you saying then that I'm not liable? Of course not, because the degree of the burn says nothing at all about whether or not I was negligent, or whether the product was defective. Period. All it says it how bad my negligence or defectiveness is, once your actually proven negligence or defect.
It is very easy to make coffee that doesn't produce third degree burns within less than a second of contact. It is hard to produce coffee that doesn't produce second degree burns under an unlimited period of contact. Since it's easy to produce coffee that doesn't create third degree burns, failing to do so is negligent.
You tried to steamroll past this point before, so I'll just keep bringing it up:
Drive-thru liquor stores are illegal (well, in most places). That is a huge difference. You aren't even talking about tort anymore.
We're talking on principle.
Is an open container liquor that you buy at a drive-thru a defective product?
Does open liquid you buy at a drive-thru have a greater chance at resulting in harm than open liquor you buy in a bar?
If we make it illegal to serve coffee above 150 or whatever, then obviously McD's has no defense. Wonder why such a law has never happened...
If there was no law against drive-thru liquor, would selling drive-thru liquor be okay? No one would ever complain, "Gee, that sounds really irresponsible" as long as it was legal?
You're trying to make two arguments. 1) Prior juries have ruled differently when different arguments were presented. 2) That McDonalds was correct in serving coffee at that temperature, because coffee is supposed to be hot. The liquor analogy addresses the second point.
BTW, you still haven't explained how the 185 degree optimal serving temperature was calculated. You kept saying that it was the optimal number because of the NCA, but you failed to explain how the NCA arrived to those numbers in a way that would be relevant to McDonalds.
And while not an American, I'm pretty sure a couple states even allow open containers in vehicles, provided the number of open containers is one less than the number of occupants.
It is very easy to make coffee that doesn't produce third degree burns within less than a second of contact. It is hard to produce coffee that doesn't produce second degree burns under an unlimited period of contact. Since it's easy to produce coffee that doesn't create third degree burns, failing to do so is negligent.
You can keep trying to make this true, but it isn't.
It's very easy to make a knife that can't cut dirt. That does not make me negligent for making one that can pierce a major organ. Your notion of what "negligence" means is simply incorrect, and would not work in any sensible tort system.
Is an open container liquor that you buy at a drive-thru a defective product?
It's an illegal one. I do understand that you want to argue this "on principle," which I guess means a hypothetical where it isn't illegal. But the thing is, part of the reason it's illegal is because we know that if it wasn't, it would be pretty much impossible to hold the liquor store liable for a DUI. Tort wouldn't and couldn't work here, it has to be straight-up illegal. I mean, why stop at open containers and drive-thrus? It was the liquor, not the drive-thru or the open container, that created the "UI" part. Why not hold the liquor store liable for DUIs concerning anyone who drove their car to the liquor store? Just like Stella, I can open my drink in the car.
The answer is the same as it always has been. Someone getting in a DUI does not make the beverage defective. The best liquor in the world makes you drunk and impairs your ability to drive. The idea of defect you suppose is, I dunno, it's insane. It defies basic logic. Do you even understand what "defective" means? I means the thing wasn't what it was should be.
The only point you might have in there is the "open" part, in that the product sold was "open" when it didn't need to be and shouldn't be. If McD's served coffee without a lid, heck yeah, defective. In particular, the cup would be defective for having no lid and hence obviosuly not being what it needed to be, you know, since it is supposed to hold something that can cause serious burns.
Does open liquid you buy at a drive-thru have a greater chance at resulting in harm than open liquor you buy in a bar?
The pertinent question is: is there something about the product that isn't normal or recommended, and does that aspect increase the risk? On the liquor being open when sold, I'd say yes. I see no analogy in hot coffee.
If there was no law against drive-thru liquor, would selling drive-thru liquor be okay? No one would ever complain, "Gee, that sounds really irresponsible" as long as it was legal?
There was a drive-thru liquor store right down the street from where I grew up. The answer to your question is: this is precisely why things like this are handled by making it illegal... trying to hold some liable won't work. I mean, do you even have much evidence that someone who has to walk in and out of a liquor store is significantly less likely to drink and drive that someone who can stay in their car and get it via a window?
BTW, you still haven't explained how the 185 degree optimal serving temperature was calculated. You kept saying that it was the optimal number because of the NCA, but you failed to explain how the NCA arrived to those numbers in a way that would be relevant to McDonalds.
You can look it up yourself. It was all about optimal flavor and destroying compounds and stuff. But your challenge is ridiculous. Evidence presented has always fully supported this temperature as a normal temperature for coffee, for several different reasons, and no evidence has ever been given that it isn't a normal temperature for coffee. The burden is most certainly on you to say that it isn't normal. You aren't making any point by simply trying to pick off all the evidence for why it is normal... unless you've got evidence that it isn't first.
It is very easy to make coffee that doesn't produce third degree burns within less than a second of contact. It is hard to produce coffee that doesn't produce second degree burns under an unlimited period of contact. Since it's easy to produce coffee that doesn't create third degree burns, failing to do so is negligent.
You can keep trying to make this true, but it isn't.
It's very easy to make a knife that can't cut dirt. That does not make me negligent for making one that can pierce a major organ. Your notion of what "negligence" means is simply incorrect, and would not work in any sensible tort system.
You're reaching too wide with this bullshit knife analogy. No one buys a knife to consume. They buy it to cut through something. If you cut yourself with a knife, it did its' job perfectly, just not on the right material.
You don't brew coffee to HURT people. The argument is moot. Stop fucking making it.
Is an open container liquor that you buy at a drive-thru a defective product?
It's an illegal one. I do understand that you want to argue this "on principle," which I guess means a hypothetical where it isn't illegal. But the thing is, part of the reason it's illegal is because we know that if it wasn't, it would be pretty much impossible to hold the liquor store liable for a DUI. Tort wouldn't and couldn't work here, it has to be straight-up illegal. I mean, why stop at open containers and drive-thrus? It was the liquor, not the drive-thru or the open container, that created the "UI" part. Why not hold the liquor store liable for DUIs concerning anyone who drove their car to the liquor store? Just like Stella, I can open my drink in the car.
So Schrodinger uses a hypothetical that is a bit silly, and it's not okay.
But the knife thing is perfectly fine?
I mean, aside from the fact that a package store isn't liable for DUIs anyway. They sell you the alcohol. So long as you don't bust it open and chug it down in the store, they can't do shit.
The answer is the same as it always has been. Someone getting in a DUI does not make the beverage defective. The best liquor in the world makes you drunk and impairs your ability to drive. The idea of defect you suppose is, I dunno, it's insane. It defies basic logic. Do you even understand what "defective" means? I means the thing wasn't what it was should be.
The best coffee in the world doesn't cause third degree burns. Once again, false equivalency (I believe that's the fallacy, insisting two things are equal when they are not).
The only point you might have in there is the "open" part, in that the product sold was "open" when it didn't need to be and shouldn't be. If McD's served coffee without a lid, heck yeah, defective. In particular, the cup would be defective for having no lid and hence obviosuly not being what it needed to be, you know, since it is supposed to hold something that can cause serious burns.
Does open liquid you buy at a drive-thru have a greater chance at resulting in harm than open liquor you buy in a bar?
The pertinent question is: is there something about the product that isn't normal or recommended, and does that aspect increase the risk? On the liquor being open when sold, I'd say yes. I see no analogy in hot coffee.
Something about the product that's not normal?
What, you mean like serving it far hotter than it needs to be?
If there was no law against drive-thru liquor, would selling drive-thru liquor be okay? No one would ever complain, "Gee, that sounds really irresponsible" as long as it was legal?
There was a drive-thru liquor store right down the street from where I grew up. The answer to your question is: this is precisely why things like this are handled by making it illegal... trying to hold some liable won't work. I mean, do you even have much evidence that someone who has to walk in and out of a liquor store is significantly less likely to drink and drive that someone who can stay in their car and get it via a window?
You're missing the point, it looks like.
Schrodinger seems more concerned that "because it's legal you can't complain it's irresponsible" seems to be your stance.
The Muffin Man on
0
Options
ElJeffeNot actually a mod.Roaming the streets, waving his gun around.Moderator, ClubPAmod
If coffee is brewed at 3rd degree burn temperatures, is it reasonable to expect the coffee to never be at a 3rd degree burn temperature when you get it?
You know, if I order a steak grilled over an open flame, I think I have a legitimate complaint if they give it to me and it's still actually on fire.
ElJeffe on
I submitted an entry to Lego Ideas, and if 10,000 people support me, it'll be turned into an actual Lego set!If you'd like to see and support my submission, follow this link.
And while not an American, I'm pretty sure a couple states even allow open containers in vehicles, provided the number of open containers is one less than the number of occupants.
Drive-through liquor doesn't bother me at all, particularly if we're talking about (to my knowledge the only kind that exists) stores that just sell closed bottles. What the fuck is the difference between parking outside, and taking that same bottle back out to my car, and being able to just pick it up at a window?
Also, I believe every state bans open containers in the passenger compartment now, though just a few years ago (2006, maybe?) it was still legal in at least one state to drink alcohol while driving, provided you were still under the limit.
And once again, you mistake immersion with spilled. (To MentalExercise)
Have you bothered to actually look at that link? They do not in fact make any mention of immersion. Furthermore there is not such a significant difference as you seem to imagine between immersion and the accident in question. They are both factors of temperature, volume, and maintained contact.
And yet again, because there are still some differences, I chose to make an extremely low estimate based on the data. Precisely because anyone should be wise enough to concede that sitting in a pint of 160 degree liquid would unquestionably cause second degree burns. Realistically it would cause third degree burns. But since third degree burns are not necessary for the argument, I am happy to lower it to second degree so we don't have to waste time on this pointless tangent.
There is a significant difference between holding your hand in a pan of 160 degree water, and soaking your 2mm thick sweat pants in 160 degree coffee.
The material is still going to hold the molecules of water away from each other, making heat transfer easier, and 2mm of liquid is still going to transfer away its heat significantly more quickly than a standing pool of liquid will.
Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself.
Coffee improperly brewed at the temperature recommended by the prosecution still gives you 3rd degree burns in a few seconds if you spill it all over yourself.
Hot coffee is hot and doesn't belong in a pool on your lap, christ.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
If coffee is brewed at 3rd degree burn temperatures, is it reasonable to expect the coffee to never be at a 3rd degree burn temperature when you get it?
You know, if I order a steak grilled over an open flame, I think I have a legitimate complaint if they give it to me and it's still actually on fire.
If you were an avid fajita eater and burned yourself by accidentally grabbing the cast iron pan I do not think you would have a legitimate case if it caused you third degree burns, when you only expected it to be hot enough to cause second. Either way you knew it was hot enough to cause serious injury, and it being hotter than you expected does not make it defective.
There is a significant difference between holding your hand in a pan of 160 degree water, and soaking your 2mm thick sweat pants in 160 degree coffee.
The material is still going to hold the molecules of water away from each other, making heat transfer easier, and 2mm of liquid is still going to transfer away its heat significantly more quickly than a standing pool of liquid will.
The sweatpants don't fucking matter.
I think you are quite the only person to suggest this. Even Liebeck's experts and lawyers conceded that the sweatpants and bucket seat were major factors in the severity of the injuries.
There is a significant difference between holding your hand in a pan of 160 degree water, and soaking your 2mm thick sweat pants in 160 degree coffee.
The material is still going to hold the molecules of water away from each other, making heat transfer easier, and 2mm of liquid is still going to transfer away its heat significantly more quickly than a standing pool of liquid will.
The sweatpants don't fucking matter.
I think you are quite the only person to suggest this. Even Liebeck's experts and lawyers conceded that the sweatpants and bucket seat were major factors in the severity of the injuries.
Because it would be next to impossible to predict that a person being served at a drive thru might be sitting in a bucket seat.
Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself.
Coffee improperly brewed at the temperature recommended by the prosecution still gives you 3rd degree burns in a few seconds if you spill it all over yourself.
Hot coffee is hot and doesn't belong in a pool on your lap, christ.
Will the above cup of coffee cause third degree burns?
Is the above cup of coffee improperly brewed?
A lot of people keep saying that the coffee Stella received was supposed to be served at that temperature. Yet not a single person has explained why.
Obviously, many people enjoy their coffee at much cooler temperatures than 185 degrees. Some people even enjoy coffee with ice in it! So explain why <185 degree coffee is improper.
There are two separate debates going on:
1) Do companies need to issue warnings that coffee is hot?
2) Should coffee be that hot in the first place?
Too many people like Yar keep focusing on the first question, while completely ignoring the second. Yes, the fact that coffee can cause burns is implied. However, if it isn't necessary to serve coffee hot enough to cause third degree burns, then they shouldn't be serving it at that temperature in the first place.
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
It's very easy to make a knife that can't cut dirt. That does not make me negligent for making one that can pierce a major organ.
"I can make a car that doesn't explode when you tap it. That doesn't make me negligent when it does."
It's an illegal one. I do understand that you want to argue this "on principle," which I guess means a hypothetical where it isn't illegal. But the thing is, part of the reason it's illegal is because we know that if it wasn't, it would be pretty much impossible to hold the liquor store liable for a DUI.
And why would we want to hold the liquor store liable? Answer: Because we understand that serving things via a drive thru carries risks that would not exist otherwise.
The answer is the same as it always has been. Someone getting in a DUI does not make the beverage defective.
I never claimed it was. What I said was that the practice of selling it at a drive thru would be defective, because a drive thru carries additional risks, which is why it's against the law.
The only point you might have in there is the "open" part, in that the product sold was "open" when it didn't need to be and shouldn't be. If McD's served coffee without a lid, heck yeah, defective.
You realize that the the lid contains an opening because it's meant to be consumed immediately, and that the coffee comes with cream and sugar that the user can add the cream and sugar on their own, thus requiring the user to open the lid?
The pertinent question is: is there something about the product that isn't normal or recommended, and does that aspect increase the risk? On the liquor being open when sold, I'd say yes. I see no analogy in hot coffee.
Coffee you're meant to handle in your car is much more likely to result in an accident. Just like liquor that you handle in the car is much more likely to car an accident. In the first case, you're more likely to have an accident with the coffee itself. In the second case, you're more likely to have an accident with the car. But in both cases, you're more likely to have an accident.
And I'm still waiting for you to give us an explanation on why McDonalds serves their coffee that hot. Rather than trying to justify it, you're stuck on "Well, it's not illegal" and "they can already burn themselves, so it doesn't matter." But you haven't explained where the 185 degree guideline actually comes from.
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
You made a factual statement that was wrong: "Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself."
What is the justification of the statement? There isn't one.
Can this statement be disproved? Very easily.
When you present an absolute statement and someone responds with a counter example, that isn't a strawman. That's an example of why your absolute statement is factually incorrect.
Basically, you're relying on a "no true cup of coffee" fallacy, and then whining "strawman" when someone points to cups of coffee that don't fit your assertion.
You said that coffee needs to be served at 185 degrees to be proper. This is untrue.
If coffee does not need to be served at 185 degrees to be proper, then why was McDonalds serving it at such a high temp? You can claim that other people serve it at that temperature, but that's an appeal to popularity. You need to provide an actual reason.
I haven't looked into the Swedish system, how do they determine if the doctor was at fault?
Right, the problem with the system isn't in the ratio of winning doctors vs losing doctors, it's that it's essentially random. Cases where egregious errors occur get nothing, cases where it's obvious there was no wrongdoing win millions.
(Yes, I just referenced the AEI. Hope the devil has wooly unmentionables.)
I realize that this is several pages old, however, I think it is important to address. This report is kind of interesting, but I don't think the conclusions are valid. They look at all of medicine as a whole when in reality I think we need to look at different specialties individually.
Look at cerebral palsy. It is virtually never caused by a birth injury, but there is a whole industry of medmal lawyers that just sue the doctors supervising delivery of children with CP. They do this because they can parade the kid through court and win on a regular basis because 50 years ago doctors did think CP was caused by birth injury and apparently the general public would rather believe the doctors of 50 years ago than the ones of today. So while maybe only 25% of medmal cases in general are incorrectly given awards, there are specific diagnoses where that number is vastly different.
The other thing that document doesn't address at all is that just because a person was injured negligently it doesn't mean that they were injured negligently by the particular doctor named on their suit or all of the doctors named on their suits. There was a case recently where a medmal lawyer filed a medmal suit that included the architect and construction company because they argued that the layout of the hospital contributed to the delay in c-section that injured the baby. It not uncommon for medmal suits to name every doctor the patient has seen since the disease process could possibly have started. Just because one of those doctors did something negligently, the other doctors shouldn't also be punished. And while it may not be a tort law issue, if one of the doctors did something clearly negligent the insurance company is going to want to settle. If they are planning on settling anyways they aren't going to bother spending the time and money to get the other doctors names removed from the suit. Then the other doctors have to pay higher medmal insurance rates for the rest of their lives.
So, are you going to continue parroting right wing talking points? The only people I can find calling Edwards' argument "junk science" are the usual suspects like CNSNews and the usual conservative talking heads. Most legitimate places that discuss the causes of cerebral palsy note that while rare, issues with deliveries can be a factor. So no, I don't buy the "junk science" argument because it's coming from places that are, shall we say, "fact-challenged". The nice folks over at The Straight Dope had an interesting thread in the subject.
Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)
Third, obstetrics doesn't show any signs of being anomalous in terms of case results. The Harvard School of Public Health published in the New England Journal of Medicinea study where they independently reviewed approximately 1500 closed medmal cases, the majority from the period 1995-2004. In said study, they specifically focused on only four specializations, of which obstetrics was one, and took specialization into account. The study showed no deviation in error/no error based on specialization. So your argument that we need to look at specialties falls flat on its face.
Fourth, tort reform won't fix medmal insurance rates. I've brought this point up in thread after thread after thread. All it does is make insurers richer, as now their liabilities are capped, while giving them no incentive to lower rates.
Finally, doctors aren't really interested in fixing the issues with malpractice. Again, I've brought this point up as well. Over half of all doctors will never be sued in their entire career, according to the AMA. And the likelihood that they will win in court is pretty high if they are sued, as long as they are following professional guidelines. The true issue with malpractice is that it is a small cadre of "repeat offenders" who generate most medmal payouts, yet the system is hamstrung in removing these quacks from medicine. Only one in three doctors who have made 10 or more malpractice payouts receives any sort of disciplinary measure from their state medical board - a number that should scare the living shit out of you.
In short, you really need to stop clinging to debunked myths.
(Thanks to the Health Line blog for their insightfulseries on medical malpractice.)
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
Your "coffee is supposed to be hot" argument was much better, though.
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
Your "coffee is supposed to be hot" argument was much better, though.
He didn't say, "coffee is supposed to be hot."
What he said was "Properly brewed coffee gives 3rd degree burns."
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
You made a factual statement that was wrong: "Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself."
What is the justification of the statement? There isn't one.
Can this statement be disproved? Very easily.
When you present an absolute statement and someone responds with a counter example, that isn't a strawman. That's an example of why your absolute statement is factually incorrect.
Basically, you're relying on a "no true cup of coffee" fallacy, and then whining "strawman" when someone points to cups of coffee that don't fit your assertion.
You said that coffee needs to be served at 185 degrees to be proper. This is untrue.
If coffee does not need to be served at 185 degrees to be proper, then why was McDonalds serving it at such a high temp? You can claim that other people serve it at that temperature, but that's an appeal to popularity. You need to provide an actual reason.
You are making a point far less clever than you think you are. Hot drinks are served hot and iced drinks are served on ice. This is elementary. And why that is the case is similarly easy. People want to purchase a product that is either hot or cold to their preference. Anyone who gives me cold tea (I don't drink coffee) has given me a product completely worthless to me. I want my tea to be hot, and like everyone else, I understand that hot tea is hot.
I don't have an opinion on specific temperatures involved, but really, you're being a silly goose. Of course hot beverages are hot. Unless you are intending to argue that hot beverages shouldn't be served at all, which is patently ridiculous.
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
You made a factual statement that was wrong: "Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself."
Properly brewed as in- you must hit a certain temperature threshold or else you fail to unlock certain important chemicals from the coffee beans and the coffee can be accurately described as improperly brewed. People keep mentioning this and you keep pretending it hasn't been mentioned.
You can argue that maybe some people like less flavorful poorly brewed coffee but it's legally unsound to base standards of "normal" off a purely hypothetical minority's affinity for improperly brewed coffee.
Likewise worth mentioning again that when you order hot coffee it's reasonable to expect it to be dangerously hot, and at that point it's legally unsound to claim liability rests anywhere other than with the customer.
Also worth noting that if you brew coffee at the procedurally incorrect temperatures proposed by Liebeck's lawyer, the coffee will a) pose a bacteriological health hazard, and b) still cause 3rd degree burns with almost identical rapidity - source.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
It's very easy to make a knife that can't cut dirt. That does not make me negligent for making one that can pierce a major organ.
If a knife company is asked they they sell knives that are sharp enough to cut organs, the proper reply is, "Well, people buy knives for the explicit purpose of cutting things. That's that point. You can't design a product to cut things and not cut things at the same time."
If McDonalds is asked why they sell coffee at the drive-thru that is hot enough to give you a third degree burn before the brain even has a chance to register what happened, McDonald's can't say, "Well, people buy coffee because they want third degree burns."
Coffee can be served at any temperature between 32 degrees and 205 degrees. You have not given a single reason why McDonalds needs to be serve their coffee at 185 degrees.
The only thing you listed was a guideline from the NCA, which says that coffee should be served within a few minutes of brewing, which means that it's temperature will be 180 degrees. In that case, the fact that the coffee is served at 180 degrees is the result of it being freshly brewed. Since McDonalds is not freshly brewed, this is irrelevant.
Moreover, the same guidelines recommend that coffee not be left on an electric burner for more than 15 minutes, because coffee will taste burnt. McDonalds leaves their coffee on an electric burner for more than 15 minutes. If they didn't leave their coffee on the burner, then the coffee wouldn't be able to maintain such a high temperature. In other words, their coffee is not 185 degrees as a side effect of being freshly brewed. It's 185 degrees because they are artificially maintaining that temperature.
I'm sure a lot of people just don't think it's worth responding when you reply to "the coffee was served at a reasonable and normal temperature" with a picture of iced coffee.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
You made a factual statement that was wrong: "Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself."
Properly brewed as in- you must hit a certain temperature threshold or else you fail to unlock certain important chemicals from the coffee beans and the coffee can be accurately described as improperly brewed. People keep mentioning this and you keep pretending it hasn't been mentioned.
You can argue that maybe some people like less flavorful poorly brewed coffee but it's legally unsound to base standards of "normal" off a purely hypothetical minority's affinity for improperly brewed coffee.
Likewise worth mentioning again that when you order hot coffee it's reasonable to expect it to be dangerously hot, and at that point it's legally unsound to claim liability rests anywhere other than with the customer.
Also worth noting that if you brew coffee at the procedurally incorrect temperatures proposed by Liebeck's lawyer, the coffee will a) pose a bacteriological health hazard, and b) still cause 3rd degree burns with almost identical rapidity - source.
And you're still ignoring that brewing temperature (unlockin' all those mad chemicals) need not be the same as serving temperature. Which the picture of iced coffee is (albeit through hyperbole) meant to illustrate.
EDIT: Also, I don't necessarily expect my hot coffee to be dangerously hot, and at best even if I do the level of that danger is not necessarily what McDonald's was offering. I actually hate when chains give you coffee so hot you can't fucking drink it for fifteen minutes. Thanks, jackasses.
Ok sure mcdermott, but if you serve coffee cold enough that it will not cause 3rd degree burns, that coffee is quite likely colder than what consumers expect and enjoy and can be reasonably expected to handle safely when they order "hot coffee".
Again, even the 160 degree coffee suggested by Liebeck's lawyers is low enough that consumers generally dislike it and it is abnormal while still being hot enough to cause 3rd degree burns if you pour it onto your genitals and sit in it for 90 seconds. Or even just a few seconds, for that matter.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
How many seconds are required for that third degree burn, and does that take into account the massive cooling that occurs when the coffee is spilled and no longer being heated? And yes, it does matter. If you spill coffee and you're severely burned almost immediately, that coffee was too damn hot; if you have to let it sit there for a while, getting burned is your own fault.
Posts
1) I would love to, but I honestly don't have time to search for data properly. I'm posting between pushing pacifiers back into mouths and various other things. If someone could lend a hand and look for relevent data I would certainly appreciate it. However in the accident in question, we are essentially talking about immersion. The damage was so severe because the liquid was trapped against the skin by sweatpants and a heavily insulated seat, which would to my mind be very similar to immersion. Again though, 160 degree liquid causing second degree burns in such a situation is actually quite an underestimate of the damage, based on what Feral posted. Intentionally so.
2) They are, but again that doesn't matter. A defective product which injures me makes the seller liable. A dangerous product which injures me, but is not defective, does not make the seller liable, even if it injures me more severely than I would have expected. Further, a consumer of coffee should be perfectly aware that it might likely be served at a temperature such as 180 degrees.
This could be a point. I would argue against, but I think more importantly it is moot. This is not what she sued on. She sued on the temperature of the coffee making it defective. If that is not true, the suit must be found for the defendant.
--LeVar Burton
1) That's not what we refer to when we say immersion. When we say immersion, we are referring to the fact that the liquid can recover any heat that is lost to the target, maintaining a stable temperature. Or, to put it another way, french fries will cook properly if you put them in a deep fryer. They will not cook properly if you simply dump a few quarts of hot oil on them and walk away.
2) It's not like McDonalds is making the coffee from scratch using guess work and feeling. They use electronic vessels that set the coffee at a reprogrammed temperature.
It's entirely possible that the coffee could be defective from the standpoint of someone having to add cream and consume the product in their car, and not defective when you're casually sitting at a table.
Coffee vendor is in best position to know the temperature of the coffee, therefore he should bear the responsibility of serving it at a safe temperature.
And I could see how the person severely damaged by the coffee would disagree.
If only we had a system of some sort in place to figure this out.
We have a great system! Mandatory Binding Arbitration!
1) As cutely condescending as this paragraph is, the CPSC link actually refers to a mere two second contact with only 150 degree water causing third degree burns, meaning my estimate of 160-170 degree coffee, and merely second degree burns, would be quite conservative really. Almost intentionally so.
2) And yet again, that is not relevant. Coffee is regularly served at a dangerous temperature. As such consumers can not assume it will be served to them at an un-dangerous temperature, and must act with apropriate caution, regardless of the reason that this particular cup was served so hot.
It is not. If I am casually sitting at a table and recognize that spilling coffee on myself could cause serious damage, I have no excuse to place the same coffee between my knees in a car and claim I did not realize it could spill on me and cause serious damage.
If a product is not defective, my using it in a precarious situation does not make it defective.
Dang! You've got me now! Too bad I am not allowed to occasionally disagree with the findings of that system and then express that disagreement! Oh wait... I am!
--LeVar Burton
So one cup of coffee? Alright read over this document with your lawyer, sign here and here, and it will be right up!
What if the product (in this case hot coffee) was inherently dangerous (rather then defective) to a small unknown portion of the population (people who accidental spill it on themselves seconds after receiving it) and the company continues to sell it anyway despite the danger because they like making money on it. The consumers are not misusing the product and the chance and knowledge of the danger is so vanishingly small the general public would not be aware of the serious nature, therefor by knowingly selling something dangerous despite the knowledge a small number of people will be hurt the company assumes the risk those people will seek damages. The company can just factor it into the cost of doing business or get insurance against the unlikely event. It is not going to bankrupt them entirely.
Also, everyone else does it is not an excuse when people get hurt. That is a good excuse very rarely.
I am sorry, but scalding hot coffee is inherently dangerous to all consumers that buy it, regardless of whether they spill it upon themselves; the danger is there. A consumer of coffee need not misuse the product to be aware that it could cause serious damage.
Yet again, to be liable for the damage caused by a product, the seller or manufacturer must be shown to be negligent. However if the product is dangerous by its nature, such as the heat in coffee, the sharpness of a knife, the speed of a snowmobile, or the toxin of beer, the consumer is expected to be aware of this risk, and manage it themselves.
--LeVar Burton
I realize that this is several pages old, however, I think it is important to address. This report is kind of interesting, but I don't think the conclusions are valid. They look at all of medicine as a whole when in reality I think we need to look at different specialties individually.
Look at cerebral palsy. It is virtually never caused by a birth injury, but there is a whole industry of medmal lawyers that just sue the doctors supervising delivery of children with CP. They do this because they can parade the kid through court and win on a regular basis because 50 years ago doctors did think CP was caused by birth injury and apparently the general public would rather believe the doctors of 50 years ago than the ones of today. So while maybe only 25% of medmal cases in general are incorrectly given awards, there are specific diagnoses where that number is vastly different.
The other thing that document doesn't address at all is that just because a person was injured negligently it doesn't mean that they were injured negligently by the particular doctor named on their suit or all of the doctors named on their suits. There was a case recently where a medmal lawyer filed a medmal suit that included the architect and construction company because they argued that the layout of the hospital contributed to the delay in c-section that injured the baby. It not uncommon for medmal suits to name every doctor the patient has seen since the disease process could possibly have started. Just because one of those doctors did something negligently, the other doctors shouldn't also be punished. And while it may not be a tort law issue, if one of the doctors did something clearly negligent the insurance company is going to want to settle. If they are planning on settling anyways they aren't going to bother spending the time and money to get the other doctors names removed from the suit. Then the other doctors have to pay higher medmal insurance rates for the rest of their lives.
I'll post these again, because it seems to be continually ignored by people who are obsessed with the numbers 160 and 185 and care more about the technicalities of immersion vs spilling instead of the topic of the thread:
Documented decision on other cases, however, repeatedly and consistently disagree with you, or disagree that it matters. You can sue for a 2nd degree burn, or even a scalding, you know? You can sue for minor cut, and win, if it was caused by negligence. The degree of of harm is not and has never been a means to determine negligence. Which, of course, makes sense. You can't decree negligence out of thin air just because the accident was so nasty. There has to be, you know, negligence. A defect. Something that wasn't what it should have been. Showing pictures of her burned 'giney says nothing at all about whether the coffee was defective, or damned perfect. You have to talk about the coffee, not the accident, to make your case about it being defective. This standard has never been successfully challenged. As Feral pointed out, if you can show it was defective/negligently served, then you can factor in the severity of the accident as an argument as to just how negligent it was.
Your melodrama does not make you any less incorrect. If I negligently design a defective product that causes second degree burns, but not third, are you saying then that I'm not liable? Of course not, because the degree of the burn says nothing at all about whether or not I was negligent, or whether the product was defective. Period. All it says it how bad my negligence or defectiveness is, once you've actually proven negligence or defect.
Perhaps, but what seems even more clear is that if McD's had better managed their expert testimony on statistics, then McD's would have won even with the skin grafts.
Actually, you're 100% wrong here. I mean, sure, if the extent of risk is so small that there aren't any significant damages, then liability is a moot point. But you are still liable for any damage that can be shown, even if it's just making some scared or giving them a slight ache for a few minutes or causing them to break their favorite spoon. I'm sorry, but your idea of how the law works on these matters is completely backwards. So long as you can show that it resulted from negligence or defect, indigestion and food poisoning only differ in degree. They do not determine liability. They may only determine the extent of the damages.
I mean, this is really extremely simple, basic reasoning, and kind of frustrating to see people argue against it so vehemently. If I throw a rock and it cuts your arm, that's my fault. If I throw a rock and it kills you, that's my fault. The degree of damage says absolutely zero, nothing whatsoever, about whether or not the damage was my fault. The fact that I threw the rock at you is why it's my fault. The only way the damage is a factor is if I totally miss and you didn't even see me throw it, in which case there isn't anything to fault. However, 1st degree, 2nd degree, even just coffee hot enough to make you say "ow," all of these are damages we might find someone at fault for. The degree cannot and does not tell us whose fault it is.
You tried to steamroll past this point before, so I'll just keep bringing it up:
Drive-thru liquor stores are illegal (well, in most places). That is a huge difference. You aren't even talking about tort anymore.
If we make it illegal to serve coffee above 150 or whatever, then obviously McD's has no defense. Wonder why such a law has never happened...
It is very easy to make coffee that doesn't produce third degree burns within less than a second of contact. It is hard to produce coffee that doesn't produce second degree burns under an unlimited period of contact. Since it's easy to produce coffee that doesn't create third degree burns, failing to do so is negligent.
We're talking on principle.
Is an open container liquor that you buy at a drive-thru a defective product?
Does open liquid you buy at a drive-thru have a greater chance at resulting in harm than open liquor you buy in a bar?
If there was no law against drive-thru liquor, would selling drive-thru liquor be okay? No one would ever complain, "Gee, that sounds really irresponsible" as long as it was legal?
You're trying to make two arguments. 1) Prior juries have ruled differently when different arguments were presented. 2) That McDonalds was correct in serving coffee at that temperature, because coffee is supposed to be hot. The liquor analogy addresses the second point.
BTW, you still haven't explained how the 185 degree optimal serving temperature was calculated. You kept saying that it was the optimal number because of the NCA, but you failed to explain how the NCA arrived to those numbers in a way that would be relevant to McDonalds.
Remember, no one wants to buy coffee under 185 degrees.
http://stuffcajunpeoplelike.wordpress.com/2008/04/03/12-drive-through-daiquiri-shops/
And while not an American, I'm pretty sure a couple states even allow open containers in vehicles, provided the number of open containers is one less than the number of occupants.
It's very easy to make a knife that can't cut dirt. That does not make me negligent for making one that can pierce a major organ. Your notion of what "negligence" means is simply incorrect, and would not work in any sensible tort system.
It's an illegal one. I do understand that you want to argue this "on principle," which I guess means a hypothetical where it isn't illegal. But the thing is, part of the reason it's illegal is because we know that if it wasn't, it would be pretty much impossible to hold the liquor store liable for a DUI. Tort wouldn't and couldn't work here, it has to be straight-up illegal. I mean, why stop at open containers and drive-thrus? It was the liquor, not the drive-thru or the open container, that created the "UI" part. Why not hold the liquor store liable for DUIs concerning anyone who drove their car to the liquor store? Just like Stella, I can open my drink in the car.
The answer is the same as it always has been. Someone getting in a DUI does not make the beverage defective. The best liquor in the world makes you drunk and impairs your ability to drive. The idea of defect you suppose is, I dunno, it's insane. It defies basic logic. Do you even understand what "defective" means? I means the thing wasn't what it was should be.
The only point you might have in there is the "open" part, in that the product sold was "open" when it didn't need to be and shouldn't be. If McD's served coffee without a lid, heck yeah, defective. In particular, the cup would be defective for having no lid and hence obviosuly not being what it needed to be, you know, since it is supposed to hold something that can cause serious burns.
The pertinent question is: is there something about the product that isn't normal or recommended, and does that aspect increase the risk? On the liquor being open when sold, I'd say yes. I see no analogy in hot coffee.
There was a drive-thru liquor store right down the street from where I grew up. The answer to your question is: this is precisely why things like this are handled by making it illegal... trying to hold some liable won't work. I mean, do you even have much evidence that someone who has to walk in and out of a liquor store is significantly less likely to drink and drive that someone who can stay in their car and get it via a window?
You can look it up yourself. It was all about optimal flavor and destroying compounds and stuff. But your challenge is ridiculous. Evidence presented has always fully supported this temperature as a normal temperature for coffee, for several different reasons, and no evidence has ever been given that it isn't a normal temperature for coffee. The burden is most certainly on you to say that it isn't normal. You aren't making any point by simply trying to pick off all the evidence for why it is normal... unless you've got evidence that it isn't first.
You don't brew coffee to HURT people. The argument is moot. Stop fucking making it.
So Schrodinger uses a hypothetical that is a bit silly, and it's not okay.
But the knife thing is perfectly fine?
I mean, aside from the fact that a package store isn't liable for DUIs anyway. They sell you the alcohol. So long as you don't bust it open and chug it down in the store, they can't do shit.
The best coffee in the world doesn't cause third degree burns. Once again, false equivalency (I believe that's the fallacy, insisting two things are equal when they are not).
Can.
Not SHOULD.
Something about the product that's not normal?
What, you mean like serving it far hotter than it needs to be?
You're missing the point, it looks like.
Schrodinger seems more concerned that "because it's legal you can't complain it's irresponsible" seems to be your stance.
You know, if I order a steak grilled over an open flame, I think I have a legitimate complaint if they give it to me and it's still actually on fire.
Drive-through liquor doesn't bother me at all, particularly if we're talking about (to my knowledge the only kind that exists) stores that just sell closed bottles. What the fuck is the difference between parking outside, and taking that same bottle back out to my car, and being able to just pick it up at a window?
Also, I believe every state bans open containers in the passenger compartment now, though just a few years ago (2006, maybe?) it was still legal in at least one state to drink alcohol while driving, provided you were still under the limit.
Have you bothered to actually look at that link? They do not in fact make any mention of immersion. Furthermore there is not such a significant difference as you seem to imagine between immersion and the accident in question. They are both factors of temperature, volume, and maintained contact.
And yet again, because there are still some differences, I chose to make an extremely low estimate based on the data. Precisely because anyone should be wise enough to concede that sitting in a pint of 160 degree liquid would unquestionably cause second degree burns. Realistically it would cause third degree burns. But since third degree burns are not necessary for the argument, I am happy to lower it to second degree so we don't have to waste time on this pointless tangent.
--LeVar Burton
The material is still going to hold the molecules of water away from each other, making heat transfer easier, and 2mm of liquid is still going to transfer away its heat significantly more quickly than a standing pool of liquid will.
The sweatpants don't fucking matter.
Coffee improperly brewed at the temperature recommended by the prosecution still gives you 3rd degree burns in a few seconds if you spill it all over yourself.
Hot coffee is hot and doesn't belong in a pool on your lap, christ.
You do ?
If you were an avid fajita eater and burned yourself by accidentally grabbing the cast iron pan I do not think you would have a legitimate case if it caused you third degree burns, when you only expected it to be hot enough to cause second. Either way you knew it was hot enough to cause serious injury, and it being hotter than you expected does not make it defective.
--LeVar Burton
I think you are quite the only person to suggest this. Even Liebeck's experts and lawyers conceded that the sweatpants and bucket seat were major factors in the severity of the injuries.
--LeVar Burton
Because it would be next to impossible to predict that a person being served at a drive thru might be sitting in a bucket seat.
Will the above cup of coffee cause third degree burns?
Is the above cup of coffee improperly brewed?
A lot of people keep saying that the coffee Stella received was supposed to be served at that temperature. Yet not a single person has explained why.
Obviously, many people enjoy their coffee at much cooler temperatures than 185 degrees. Some people even enjoy coffee with ice in it! So explain why <185 degree coffee is improper.
There are two separate debates going on:
1) Do companies need to issue warnings that coffee is hot?
2) Should coffee be that hot in the first place?
Too many people like Yar keep focusing on the first question, while completely ignoring the second. Yes, the fact that coffee can cause burns is implied. However, if it isn't necessary to serve coffee hot enough to cause third degree burns, then they shouldn't be serving it at that temperature in the first place.
Certainly comes off more like smarmy straw man misdirection than anything legally relevant.
"I can make a car that doesn't explode when you tap it. That doesn't make me negligent when it does."
And why would we want to hold the liquor store liable? Answer: Because we understand that serving things via a drive thru carries risks that would not exist otherwise.
I never claimed it was. What I said was that the practice of selling it at a drive thru would be defective, because a drive thru carries additional risks, which is why it's against the law.
You realize that the the lid contains an opening because it's meant to be consumed immediately, and that the coffee comes with cream and sugar that the user can add the cream and sugar on their own, thus requiring the user to open the lid?
Coffee you're meant to handle in your car is much more likely to result in an accident. Just like liquor that you handle in the car is much more likely to car an accident. In the first case, you're more likely to have an accident with the coffee itself. In the second case, you're more likely to have an accident with the car. But in both cases, you're more likely to have an accident.
And I'm still waiting for you to give us an explanation on why McDonalds serves their coffee that hot. Rather than trying to justify it, you're stuck on "Well, it's not illegal" and "they can already burn themselves, so it doesn't matter." But you haven't explained where the 185 degree guideline actually comes from.
You made a factual statement that was wrong: "Properly brewed coffee gives 3rd degree burns in a few seconds if you spill it all over yourself."
What is the justification of the statement? There isn't one.
Can this statement be disproved? Very easily.
When you present an absolute statement and someone responds with a counter example, that isn't a strawman. That's an example of why your absolute statement is factually incorrect.
Basically, you're relying on a "no true cup of coffee" fallacy, and then whining "strawman" when someone points to cups of coffee that don't fit your assertion.
You said that coffee needs to be served at 185 degrees to be proper. This is untrue.
If coffee does not need to be served at 185 degrees to be proper, then why was McDonalds serving it at such a high temp? You can claim that other people serve it at that temperature, but that's an appeal to popularity. You need to provide an actual reason.
So, are you going to continue parroting right wing talking points? The only people I can find calling Edwards' argument "junk science" are the usual suspects like CNSNews and the usual conservative talking heads. Most legitimate places that discuss the causes of cerebral palsy note that while rare, issues with deliveries can be a factor. So no, I don't buy the "junk science" argument because it's coming from places that are, shall we say, "fact-challenged". The nice folks over at The Straight Dope had an interesting thread in the subject.
Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)
Third, obstetrics doesn't show any signs of being anomalous in terms of case results. The Harvard School of Public Health published in the New England Journal of Medicine a study where they independently reviewed approximately 1500 closed medmal cases, the majority from the period 1995-2004. In said study, they specifically focused on only four specializations, of which obstetrics was one, and took specialization into account. The study showed no deviation in error/no error based on specialization. So your argument that we need to look at specialties falls flat on its face.
Fourth, tort reform won't fix medmal insurance rates. I've brought this point up in thread after thread after thread. All it does is make insurers richer, as now their liabilities are capped, while giving them no incentive to lower rates.
Finally, doctors aren't really interested in fixing the issues with malpractice. Again, I've brought this point up as well. Over half of all doctors will never be sued in their entire career, according to the AMA. And the likelihood that they will win in court is pretty high if they are sued, as long as they are following professional guidelines. The true issue with malpractice is that it is a small cadre of "repeat offenders" who generate most medmal payouts, yet the system is hamstrung in removing these quacks from medicine. Only one in three doctors who have made 10 or more malpractice payouts receives any sort of disciplinary measure from their state medical board - a number that should scare the living shit out of you.
In short, you really need to stop clinging to debunked myths.
(Thanks to the Health Line blog for their insightful series on medical malpractice.)
Your "coffee is supposed to be hot" argument was much better, though.
He didn't say, "coffee is supposed to be hot."
What he said was "Properly brewed coffee gives 3rd degree burns."
You are making a point far less clever than you think you are. Hot drinks are served hot and iced drinks are served on ice. This is elementary. And why that is the case is similarly easy. People want to purchase a product that is either hot or cold to their preference. Anyone who gives me cold tea (I don't drink coffee) has given me a product completely worthless to me. I want my tea to be hot, and like everyone else, I understand that hot tea is hot.
I don't have an opinion on specific temperatures involved, but really, you're being a silly goose. Of course hot beverages are hot. Unless you are intending to argue that hot beverages shouldn't be served at all, which is patently ridiculous.
Properly brewed as in- you must hit a certain temperature threshold or else you fail to unlock certain important chemicals from the coffee beans and the coffee can be accurately described as improperly brewed. People keep mentioning this and you keep pretending it hasn't been mentioned.
You can argue that maybe some people like less flavorful poorly brewed coffee but it's legally unsound to base standards of "normal" off a purely hypothetical minority's affinity for improperly brewed coffee.
Likewise worth mentioning again that when you order hot coffee it's reasonable to expect it to be dangerously hot, and at that point it's legally unsound to claim liability rests anywhere other than with the customer.
Also worth noting that if you brew coffee at the procedurally incorrect temperatures proposed by Liebeck's lawyer, the coffee will a) pose a bacteriological health hazard, and b) still cause 3rd degree burns with almost identical rapidity - source.
If a knife company is asked they they sell knives that are sharp enough to cut organs, the proper reply is, "Well, people buy knives for the explicit purpose of cutting things. That's that point. You can't design a product to cut things and not cut things at the same time."
If McDonalds is asked why they sell coffee at the drive-thru that is hot enough to give you a third degree burn before the brain even has a chance to register what happened, McDonald's can't say, "Well, people buy coffee because they want third degree burns."
Coffee can be served at any temperature between 32 degrees and 205 degrees. You have not given a single reason why McDonalds needs to be serve their coffee at 185 degrees.
The only thing you listed was a guideline from the NCA, which says that coffee should be served within a few minutes of brewing, which means that it's temperature will be 180 degrees. In that case, the fact that the coffee is served at 180 degrees is the result of it being freshly brewed. Since McDonalds is not freshly brewed, this is irrelevant.
Moreover, the same guidelines recommend that coffee not be left on an electric burner for more than 15 minutes, because coffee will taste burnt. McDonalds leaves their coffee on an electric burner for more than 15 minutes. If they didn't leave their coffee on the burner, then the coffee wouldn't be able to maintain such a high temperature. In other words, their coffee is not 185 degrees as a side effect of being freshly brewed. It's 185 degrees because they are artificially maintaining that temperature.
And you're still ignoring that brewing temperature (unlockin' all those mad chemicals) need not be the same as serving temperature. Which the picture of iced coffee is (albeit through hyperbole) meant to illustrate.
EDIT: Also, I don't necessarily expect my hot coffee to be dangerously hot, and at best even if I do the level of that danger is not necessarily what McDonald's was offering. I actually hate when chains give you coffee so hot you can't fucking drink it for fifteen minutes. Thanks, jackasses.
Again, even the 160 degree coffee suggested by Liebeck's lawyers is low enough that consumers generally dislike it and it is abnormal while still being hot enough to cause 3rd degree burns if you pour it onto your genitals and sit in it for 90 seconds. Or even just a few seconds, for that matter.