August 04, 2004

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.

Ted makes a separate PointofLaw:

So, yes, let's criticize the jurors who let emotion prevail over reason and common sense, let's criticize the plaintiff who sought to take money from McDonald's to compensate her for her own carelessness, and let's criticize the judge who didn't put a stop to this nonsense before it got to trial. But let's not forget that the most powerful lobby in America wants to make cases like Liebeck a regular state of affairs--and that that problem is a far bigger problem than the aberrant plaintiff, jurors, or judge.
In other words, vilifying trial lawyers as a class is OK because they have an organization (American Trial Lawyers Association) and because unlike the "aberrant" plaintiffs who bring the cases, judges who permit them to go forward and juries who agree with the plaintiffs, they deal in such cases as a career.

This is an interesting argument, and might be compared to the reasoning commonly used in torts. Multiple parties contribute to the harm of excessive litigation, but in Ted's view, trial lawyers are the most proximate cause and therefore ought to bear the greatest responsibility. Or to use the Learned Hand formulation, trial lawyers are the ones who can most easily prevent frivolous lawsuits and bad verdicts, so the onus should be on them to do so.

August 4, 2004 02:10 PM | TrackBack
Comments

Actually, the mouth can take a higher temperature than the skin. And customers prefer to have coffee hot, rather than lukewarm--not least because a commuter buying lukewarm coffee is going to have cold coffee when she gets to the office, while one buying hot coffee will instead have pleasantly drinkable coffee. If it was really the case that McDonald's coffee was undesireably hot, they would've lost market share to providers that served cooler coffee.

That coffee is hot is a feature, rather than a bug.

I'm not sure you've thought through the implications of your argument. One can think of countless foods that are served hot enough to burn -- fajitas, pizza and other Italian dishes, steak char-broiled at a high temperature, Vietnamese fondue, boiling water for tea. Isn't enough for the server to say "Careful, that plate is hot" or is the server legally obligated to wait for the food to become tepid before serving it?

No one is disputing that coffee is dangerous. Lots of things are dangerous. But coffee is reasonably dangerous, just as a knife or a bagel or a pair of sweatpants is. It shouldn't be a source of liability. If I spill coffee on you, or provide you with a cup that falls apart and spills coffee on you, that's one thing; but if you spill my coffee on yourself, why should I be liable?

We don't censor the Internet for adults just because children might conceivably get access to pornography. Why should careful consumers have to have their options limited for fear of injury to the clumsy?

Posted by: Ted at August 4, 2004 03:29 PM

It is true that "Automobiles are never meant to hit other large objects; airplanes are never meant to crash." However, it is also true that coffee is not meant to be poured onto one's crotch.

It makes me think of dining at a restaurant. Often you are served a meal that was baked in the oven on the same plate on which the meal is served. The server cliché: "Be careful. The plate is very hot."

If you burn your wrist on a plate that came out of the oven, do you get to sue the restaurant? If they warned you the plate was hot? What if the server did not warn you?

I'd like to think not.

[But, I am glad you found my lawnmower example credible!]

Posted by: Fool at August 4, 2004 03:33 PM

"Actually, the mouth can take a higher temperature than the skin."

What is the basis for that claim?

"And customers prefer to have coffee hot, rather than lukewarm"

Is that the complete choice set? Scalding hot or lukewarm?

Posted by: Strange Doctrines at August 4, 2004 03:58 PM

"If I spill coffee on you, or provide you with a cup that falls apart and spills coffee on you, that's one thing; but if you spill my coffee on yourself, why should I be liable?"

It isn't necessarily the act of spilling coffee on the customer, or lack thereof, that justifies holding someone liable. The focus, instead, is the excessively high temperature of the coffee that spilled. So, whether or not I spill coffee on you, or you spill coffee on you, the spill would be less harmful if I had not served you the coffee at such a high temperature. I do agree, though, that the proper temperature is open for interpretation, but I do not agree that the issue is resolved in any way by determining who caused the coffee to spill.

Further, if I serve coffee that is unreasonably hot, I should forsee the possibility that a person might spill the hot drink on himself. People are sometimes careless.

Posted by: Sean S at August 4, 2004 05:24 PM

Arg! I didn't see this post until I had posted again on the first post.

Here's a summary:

1. Coffee can't be "too hot" compared to normal serving from every restaurant in the nation (and normal serving from every doffee pot in the nation). It is always served far above the point of 3rd degree burns - that's the industry standard and has been since before any of us were born.

2. 700 cases of burns vs millions of cups of coffee every day makes McDs coffee SAFER than driving to work or trying to avoid a bolt of lightning during the course of an entire year.

(end summary)

As to how hot the mouth can take liquids... I've personally seen people drink coffee that had just been served to them, making it AT LEAST 170 F, probably greater. I've burned myself through the calluses of my hand at temperatures lower than that.

In short, these:
"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."
"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."
are simply not true. You're pulling them out of the air.

As to your current point: you are basically saying that it should be illegal for people to be able to buy coffee at the temperature they want it. Yes, people WANT their coffee hot, or places that serve it lukewarm (in coffee terms, that's less than 170 F) would do well instead of being complained about (which they are).

And I second this:

"However, it is also true that coffee is not meant to be poured onto one's crotch."

This all boils down (no pun intended) to this simple qustion:
Is it my fault if I hurt myself with something that behaves exactly as I purchesed it too?

Posted by: Deoxy at August 4, 2004 06:32 PM

Man, I'm tired of this argument. The relevant facts on hotness as I've been able to find them are below. Notice in particular the difference in temperature between McDonald's corporate requirements and what other people do. Also, we're talking third degree burns, that is, burns that go through the skin, destroying it completely, to the meat below and require skin grafts. For those of you who ride a motorcycle, that's like a pipe burn where the skin sticks to the pipe when you pull away.

Why on earth would anyone serve a product which they KNEW would cause third degree burns if spilled on skin? Oh, right, because that way, you can't taste that it's gone bitter because it's too old, and you can sell the whole pot. This is not a product that works exactly the way you expect it to, not by a long shot.
-----
During discovery, McDonalds produced documents showing more than 700
claims by people burned by its coffee between 1982 and 1992. Some claims
involved third-degree burns substantially similar to Liebecks. This
history documented McDonalds' knowledge about the extent and nature of
this hazard.

McDonalds also said during discovery that, based on a consultants
advice, it held its coffee at between 180 and 190 degrees fahrenheit to
maintain optimum taste. He admitted that he had not evaluated the
safety ramifications at this temperature. Other establishments sell
coffee at substantially lower temperatures, and coffee served at home is
generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company
actively enforces a requirement that coffee be held in the pot at 185
degrees, plus or minus five degrees. He also testified that a burn
hazard exists with any food substance served at 140 degrees or above,
and that McDonalds coffee, at the temperature at which it was poured
into styrofoam cups, was not fit for consumption because it would burn
the mouth and throat. The quality assurance manager admitted that burns
would occur, but testified that McDonalds had no intention of reducing
the "holding temperature" of its coffee.

Posted by: paperwight at August 4, 2004 07:34 PM

Not a lawyer yet, but... This case, as far as I'd adjudicate, turns on prior claims.

McDonalds had the following knowledge:
1) Their coffee had caused injuries when served at corporate mandated temperature - sometimes sever burns - and corporate McDonald had knowledge of the injuries
2) The corporate mandate was far outside the bounds of what they call "standard of care" in medicine. While not directly transferable, this principle seems translatable to the coffee serving industry.

Further, I'd like to blow holes in the market share argument. Ya know, as an aside, this market theory bs has got to stop sometime. People value many things using (or not) metrics that aren't translatable to dollars. That's why our language has terms like invaluable, priceless and 'not for sale'. Anyway, I rant... But how many times have you gotten a stale package of fries from McDonalds? If your answer is "More than once.", you just can't argue that this woman would not have bought coffee from McD's if they served their java too hot. Further, other intangibles come into play. The convenience of a drive-through might more than compensate for the inconvenience of waiting for the coffee to cool. And finally, how do we know this wasn't her first time buying McD's coffee? The point is, markets don't always work effectively - especially in the short term.

It's too bad so many smart fellas go to law school at Chicago...

Posted by: Mike Stark at August 4, 2004 08:23 PM

to the people who don't want to listen,

I will say this again:

The STANDARD temperature ACROSS THE ENTIRE FOOD INDUSTRY is a minimum of 170 F. MINIMUM. 190 F is a common target temperature. (I used to work in the food service industry. 190 F was our serving temperature target. That wasn't at McDs, BTW.)

"it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste."

This is absolutely true - and true of every other major coffee seller in the nation.

"Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees."

Which ones? Not any major names - perhaps the 24 hour cheap places that pople avoid until the wee hours of the morning when there's nothing else...

And home coffee temperatures are NOT 135-140 degrees - the standard for home coffee pots is 170 F up to 205 F. (See findings of fact in Whoever vs Bun-o-matic, which is th same exact case, only it was dismissed with prejudice. You can also gt this information from any major department store by checking the coffe pots they sell.) If people want to serve it at lower temperatures, they have to let it cool, just like getting coffee at a restaurant.

In short, 170 F is the absollute minimum one should expect to have coffe served to them; anything less is an inferior product.

Moving on to the "700 burns" claim - 700, only some of which were 3rd degree, in 10 years? McDs serves literally millions of cups of coffee EVERY DAY. 700 in 10 years is SAFER than driving to work. It's safer than trying to avoid a lightning bolt for a year. It's safer than going to an amusement park. It's safer than flying. It's safer than almost anything you can name.

Compare the numbers. Anytime you have something that could possibly cause harm, and you have enough of it, it will have caused some harm. Knives, guns, automobiles, lawnmowers, trimmers, power-saws, hot water in your home for that matter. People burn themselves on hot water from the faucet evry year - should they sue whoever installed their hotwater heater? After all, it doesn't NEED to be THAT hot, right?

So, in summary:

1. McDs coffee was served at the NORMAL temperature for coffee.

2. McDs coffee is statistically safer than almost any other activity you can name.

Posted by: Deoxy at August 5, 2004 10:27 AM

Oh, and I forgot one more thing:

SHE SPILLED IT ON HERSELF.

So, in order to get several million dollars, all I have to do spill so hot coffee on myself? There are people willing to do that (there are people willing to maim themselves to have lifetime worker's compensation, so what's a little coffee burn?)

How about I go buy a car, run the motor a while, and stick my hand in the motor? Is that the fault of the car company? The motor is supposed to get hot for me to use the car, and I am not supposed to put my hand on the motor while it's hot, just like I'm not supposed to pour coff in my lap.

One more major point that I forgot:

"McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat."

I don't know about the throat, but an experienced coffee drinker can sip freshly served coffee at ~180 F without burning themselves - I've personally seen it many times.

The skin can become accomstomed and immune to very high temperatures. There are detailed accounts of silk workers years ago able to reach into BOILING water with their bare hands without injury.

Would a normal person be burned? Yes, but that doesn't mean everyone would.

Posted by: Deoxy at August 5, 2004 10:38 AM

Folks, I'm aware of the ATLA "fact" sheet on the Liebeck case. I've repeatedly refuted it on overlawyered.com. So cutting and pasting it into the comments section doesn't further the discussion.

Sean S.: If a vendor doesn't serve coffee "scalding hot", it will be tepid by the time the consumer opens the lid, adds cream and sugar, and drinks it. That's just an unfortunate principle of physics that coffee served above room temperature will transmit heat to the environment and eventually reach room temperature. That's why McDonald's, Starbucks, and Bunn-O-Matic serve coffee at a temperature that can cause third-degree burns. Even Liebeck's laywer's investigator found three other fast food restaurants that served coffee at a higher temperature than a number of McDonald's restaurants. (See the WSJ article on the subject.) Only ATLA thinks that coffee should be served at 135 degrees.

Posted by: Ted at August 5, 2004 01:52 PM

Mike writes:
McDonalds knew:
1) Their coffee had caused injuries when served at corporate mandated temperature - sometimes sever burns - and corporate McDonald had knowledge of the injuries
2) The corporate mandate was far outside the bounds of what they call "standard of care" in medicine. While not directly transferable, this principle seems translatable to the coffee serving industry.

But:
1) General Motors knows that their automobiles cause injuries--and sometimes death--when driven at 55 mph.
2) The corporate mandate is to produce automobiles that can go 55 mph -- and even faster!

Thus, should GM be liable for every injury from an auto accident at speeds greater than 10 mph? After all, it would be a piece of cake for GM to instead sell cars that can't go faster than the considerably safer speed of 10 mph. What's the principle that holds McDonald's liable for accidents caused by its coffee (which is capable of burning when sold at the designed temperature), but not GM for accidents caused by its automobiles (which kill thousands of people every year when driven at the designed speed)?

Posted by: Ted at August 5, 2004 02:02 PM
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