A friend owns one of the fast food chains, and had a customer who
could not make up their mind between 2 different meals. They finally
decided upon one, placed the order, and paid for it. When the food was
ready, they changed their mind and wanted the other meal. My friend
was accomodating, and asked for 30 cents more - the difference between
the meals. The customer became very angry, refused to pay the 30
cents, and demanded their money back. They were told that was not
possible since the food and drinks were already prepared and ready.
The customer left the store, and a few days later a letter arrived at
the restaurant from small claims court. The customer began an action
against the restaurant for $5,000.

What's the best way for the restaurant to prepare for the hearing, and
to fight this?

Thanks in advance for the advice.
Frank

Frank wrote: A friend owns one of the fast food chains, and had a customer who could not make up their mind between 2 different meals. They finally decided upon one, placed the order, and paid for it. When the food was ready, they changed their mind and wanted the other meal. My friend was accomodating, and asked for 30 cents more - the difference between the meals. The customer became very angry, refused to pay the 30 cents, and demanded their money back. They were told that was not possible since the food and drinks were already prepared and ready. The customer left the store, and a few days later a letter arrived at the restaurant from small claims court. The customer began an action against the restaurant for $5,000. What's the best way for the restaurant to prepare for the hearing, and to fight this?

Ah, another friend lacking Internet capacity. They're awfully common in this
newsgroup.

Here you give your friend's account of the incident. However you don't give
the reason for the suit. That is, the plaintiff (the 30 cent customer) has
to be making certain allegations (claims) in his suit, but without saying
what those claims are, it's impossible to give any relevent advice. What is
the action alleged by the customer? For example, does he claim some sort of
racial bias was behind the dispute? Does he claim that due to missing a
meal, he got ill and had medical expenses?

Also I"m unaware of any restaurant which lacks insurance coverage for such
suits. If this suit has any substance, you may want to, oops, I mean your
friend may want to contact his carrier about them mounting a defense. Since
your exposure here is $5k, your friend may not want to contact his carrier
due to risk of rate change, but that's his call.

If you wish to repost and give the plaintiff's claims, you have a better
chance of getting a good answer.

-paul
ianal

> cents, and demanded their money back. They were told that was not possible since the food and drinks were already prepared and ready. The customer left the store, and a few days later a letter arrived at the restaurant from small claims court. The customer began an action against the restaurant for $5,000. What's the best way for the restaurant to prepare for the hearing, and to fight this?

Where, exactly, did this customer come up with $5000 in damage claims?

The best way for the restaurant to fight this is have the owner and/or
legal representative of the representative simply show up at the
hearing and make a counterclaim for legal costs (i.e., time spent
coming to court) and fees against the individual. This lawsuit
borders on the same ridiculousness as the McDonald's coffee burn
lawsuit. If your friend or his representative fails to show up in
court, there will be a default judgment against him which won't
necessarily require him to pay anything but will complicate things far
more than necessary. I wouldn't make or accept any offers to settle
because this lawsuit borders on frivolous. Hell, IT IS frivolous.

---Chris J.
Disclaimer: No attorney-client relationship exists here and posting is
in the matter of general legal advice only. Persons are advised to
contact their own attorney.

On Mon, 07 Jun 2004 14:00:13 -0400, caj11@my-deja.com (Chris Johnson)
wrote:. . . . This lawsuitborders on the same ridiculousness as the McDonald's coffee burnlawsuit. . . .

Can we call a moratorium on references to the McDonald's coffee case
without a full explanation?

See http://www.lectlaw.com/files/cur78.htm.

Daniel Reitman

FTWong@ix.netcom.com (Frank) wrote in message
news:<i3e4c0pr1i5e174vmcn8ocl2o9aif3sa5t@4ax.com>...
A friend owns one of the fast food chains, and had a customer who... began an action against the restaurant for $5,000. What's the best way for the restaurant to prepare for the hearing, and to fight this?

1. I think you mean that your friend is a franchisee of a food chain.'

2. Assuming (as is likely the case) that your friend's restaurant is a
corporation or LLC, he is going to have to hire a lawyer to represent
him. He has no choice; this aspect of NY law is frequently used as a
scam by people to extort settlements for invented claims.

3. I strongly advise your friend to attend small claims court ASAP to
see what is going on. He can also find a cheap but competent lawyer on
the spot.

4. He will have a choice between judgment "by the Court" (i.e., by the
judge) or arbitration by a volunteer lawyer. I believe (this is trying
to remember from 40 years ago) that acceptance of arbitration excludes
the right of appeal.

5. More than likely the case will be thrown out. But your friend will
be out the cost of a lawyer. That's the price of doing business in The
Big Apple, unless your friend has some kind of insurance that would
cover fraudulent claims.

6. The above is based solely upon your posting and is not intended as
legal advice.

In article <lta9c09rjl9ibks30knjkcc8agb30igpto@4ax.com>,
Chris Johnson <caj11@my-deja.com> wrote: cents, and demanded their money back. They were told that was not possible since the food and drinks were already prepared and ready. The customer left the store, and a few days later a letter arrived at the restaurant from small claims court. The customer began an action against the restaurant for $5,000. What's the best way for the restaurant to prepare for the hearing, and to fight this?Where, exactly, did this customer come up with $5000 in damage claims?

My guess is it's the limit in Small Claims (that is, out of where the
food would eventually have exited had he eaten it).
The best way for the restaurant to fight this is have the owner and/orlegal representative of the representative simply show up at thehearing and make a counterclaim for legal costs (i.e., time spentcoming to court) and fees against the individual. This lawsuitborders on the same ridiculousness as the McDonald's coffee burnlawsuit.

Much more ridiculous: in the McDonald's case, there were severe
physical damages. What are the real damages here? The $2.10 the
customer didn't get back when he wouldn't pay the additional $.30 to
get a $2.40 meal?
If your friend or his representative fails to show up incourt, there will be a default judgment against him which won'tnecessarily require him to pay anything but will complicate things farmore than necessary.

Maybe not: the judge can still decide that the plaintiff has no case.
I wouldn't make or accept any offers to settlebecause this lawsuit borders on frivolous.

From the far side.

Seth

Daniel R. Reitman wrote: On Mon, 07 Jun 2004 14:00:13 -0400, caj11@my-deja.com (Chris Johnson) wrote: . . . . This lawsuit borders on the same ridiculousness as the McDonald's coffee burn lawsuit. . . . Can we call a moratorium on references to the McDonald's coffee case without a full explanation? See http://www.lectlaw.com/files/cur78.htm.

If you're going to give an apologist site, at least let me add the skeptic's
view too:

http://www.stellaawards.com/

As a note, I"m from Albuquerque and worked with many PI attorneys during
that case. It was, by far, the most contentious case argued 'on the street'
that I ever experienced. I personally think that the plaintiff's argument
that the restaurant chain had had 700 complaints about hot coffee so it
should have modified the temperature unconvincing. The point is that Stella
did spill the coffee on herself. You may as well sue the sweatpants maker
because if not for the heat and liquid retention, she wouldn't have been
injured to any great extent.

Like it or not, but this case is, to most lay folks, an example that the
system is broken beyond repair.

-paul

On 10/6/04 14:11, in article 2angc0pdqpa90crrgrhuts0eeinjj26n7o@4ax.com,
"Paul Cassel" <paul1@abq.com> wrote:
As a note, I"m from Albuquerque and worked with many PI attorneys during that case. ... Like it or not, but this case is, to most lay folks, an example that the system is broken beyond repair.

That's because "most lay folks" don't know, and don't care to know, that the
case never went to appeal: it was settled. And the reason it was settled and
not fought further was (as has been said but perhaps not read) that the
insurer acting for the franchisee had made some (from the point of view of
the defendant) tactical errors.

Settled cases do not normally establish precedent and never establish any
precedent beyond the level of the court below (in this case, the trial
court). Usually or often the terms of settlement are confidential.

First degree burns are terrible; the plaintiff suffered egregiously. In
fact, though, must victims of suffering never get compensated. Tort reform
would make sure even fewer do.

That's a social choice: look abroad to see how much cheaper, riskier, less
contentious and socially beneficial the situation is. Or is not. Since most
judgments are paid by insurance, look to see how much cheaper insurance is
abroad. If it is.

There is no point getting mad over the case, any more than there is any
point in being mad because you didn't buy a ticket for the Thunderball
lottery. The cost to you, and the chance of winning if you had, are
essentially zero in each, respectively.

"Paul Cassel" <paul1@abq.com> wrote in message
news:<2angc0pdqpa90crrgrhuts0eeinjj26n7o@4ax.com>... If you're going to give an apologist site, at least let me add the skeptic's view too: http://www.stellaawards.com/

They raise some good counter-points (and they acknowledge that she was
not driving, and other tall tales.)

But they say:
| Here's the Kicker: Coffee is supposed to be served in the range of 185
| degrees! The National Coffee Association recommends...

Any one of us can buy an instant-read thermometer at a hardware store
for less than $10 (and they're useful in the future to test forced-air
HVAC systems, or anything else). Calibrate it (water boils at 212
degrees at sea level) and then go test coffee at various shops. I did,
and found that black coffee was served at between 160 and 175 degrees,
in a sample of 6 local shops.)

They also confuse me with
| Even in the eyes of an obviously sympathetic jury, Stella was judged
| to be 20 percent at fault -- she did, after all, spill the coffee
| into her lap all by herself. The car was stopped, so she presumably
| was not bumped to cause the spill. Indeed she chose to hold the
| coffee cup between her knees instead of any number of safer
| locations as she opened it. Should she have taken more responsibility
| for her own actions?

I don't get that one. Of course she should have taken more responsibility,
and that's why she _was_ judged 20% at fault, and had to cover 20% of the
damages herself.

Personally, I figure I take certain precautions with hot coffee. But
I also take certain risks that I would not take with things that are
hotter still, like fry oil or molten lead. "Everybody knows" that
coffee is "hot", but "hot" does not adequately describe the differences
between a hot water bottle, a hot pastrami sandwhich, hot coffee, very
hot coffee, boiling water, fry oil, molten lead, molten glass, and
molten steel.

I've gone through the 2002 and 2003 awards. They've got plaintiffs
abusing the system, and justice not being served, but I'm not seeing
any cases of plaintiffs winning the lawsuit lottery.

(Disclaimer: Last year another driver was a jerk, and caused a
fender-bender with my car, and continued to be a jerk and insisted
on filing a report. Her insurance gave me $748 for the damage to
my car. I fixed my mirror myself [it's not quite straight] and
am living with the other scratches and dents, and pocketed the
money I mostly didn't deserve. But that's a lot less than how
deficient the settlement was in making me whole the time before
that, and many orders of magnitude less than these Stella cases.)

--
- David Chesler <chesler@post.harvard.edu>
Iacta alea est

On Mon, 07 Jun 2004 14:00:13 -0400, caj11@my-deja.com (Chris Johnson) wrote:
cents, and demanded their money back. They were told that was not possible since the food and drinks were already prepared and ready. The customer left the store, and a few days later a letter arrived at the restaurant from small claims court. The customer began an action against the restaurant for $5,000. What's the best way for the restaurant to prepare for the hearing, and to fight this?
Where, exactly, did this customer come up with $5000 in damage claims?
The best way for the restaurant to fight this is have the owner and/orlegal representative of the representative simply show up at thehearing and make a counterclaim for legal costs (i.e., time spentcoming to court) and fees against the individual. This lawsuitborders on the same ridiculousness as the McDonald's coffee burnlawsuit.

There was nothing ridiculous about that lawsuit, which involved extensive
medical treatment, including skin grafts, for the victim, after McDonalds had
been repeatedly warned by its own experts that its conduct in serving coffee at
a drive through would be guaranteed to result in such harm.

In fact, the case which has been ballyhooed was far from the only such suit, as
many people were burned by McDonalds coffee previously. McDonalds chose to
continue causing harm, and they paid the consequences.

Most of the stories about this case are mythical, and have been debunked
by the Wall Street Journal, among other sources:
http://www.vanfirm.com/mcdonalds-coffee-lawsuit.htm
If your friend or his representative fails to show up incourt, there will be a default judgment against him which won'tnecessarily require him to pay anything but will complicate things farmore than necessary. I wouldn't make or accept any offers to settlebecause this lawsuit borders on frivolous. Hell, IT IS frivolous.

The suit described by the OP is indeed frivolous, since there is no cognizable
harm that could reach $5,000 (probably the high limit of a small claim in that
court) from being essentially refused a free lunch, unless the true facts widely
diverge from the OP's version of events.

That separates this clearly nonsensical suit from a suit in which serious
medical expenses were incurred by willful and reckless conduct by McDonalds.

On Thu, 10 Jun 2004 09:11:15 -0400, "Paul Cassel" <paul1@abq.com> wrote:
Daniel R. Reitman wrote: On Mon, 07 Jun 2004 14:00:13 -0400, caj11@my-deja.com (Chris Johnson) wrote: . . . . This lawsuit borders on the same ridiculousness as the McDonald's coffee burn lawsuit. . . . Can we call a moratorium on references to the McDonald's coffee case without a full explanation? See http://www.lectlaw.com/files/cur78.htm.If you're going to give an apologist site, at least let me add the skeptic'sview too:http://www.stellaawards.com/As a note, I"m from Albuquerque and worked with many PI attorneys duringthat case. It was, by far, the most contentious case argued 'on the street'that I ever experienced. I personally think that the plaintiff's argumentthat the restaurant chain had had 700 complaints about hot coffee so itshould have modified the temperature unconvincing.

You may find it unconvincing, but no competent court would have. In fact, those
were not mere complaints, but claims which were settled by McDonalds. If you
don't think that 700 previous instances of an event that caused harm was an
indication that the tortfeasor should have changed its conduct, then I wonder
exactly how many you would consider sufficient. 700 thousand? 700 million?
The point is that Stelladid spill the coffee on herself. You may as well sue the sweatpants makerbecause if not for the heat and liquid retention, she wouldn't have beeninjured to any great extent.

If you're going to "correct" people on this case, you could at least bother to
portray the record accurately.

The undisputed facts of the case are as follows:

http://www.osmond-riba.org/lis/essay_mcdonalds.htm

* Stella Liebeck, age 79, was a passenger in the car.
* The car was at a full stop so she could add cream and sugar to her coffee.
[She was not the driver and the car was not moving.]
* The cup tipped and spilled over her lap.
* Within a few seconds, Ms. Liebeck suffered third-degree burns over 6
percent of her body, including her inner thighs, perineum, buttocks, genitals
and groin.
* Ms. Liebeck was hospitalized for 8 days, and required skin grafting and
debridement treatments.
* Parts of Ms. Liebeck's body were permanently scarred.
* Ms. Liebeck tried to settle with McDonald's for $20,000 to cover her
medical expenses. McDonalds offered her $800. She sought mediation, but
McDonald's refused.
* The jury initially awarded Ms. Liebeck the equivalent of two days worth of
coffee sales for McDonalds as punitive damages.
* The trial judge reduced the verdict to something under $600,000.
Like it or not, but this case is, to most lay folks, an example that thesystem is broken beyond repair.

However, to people who actually know something about it, it is an example of how
well corporate propaganda has been used to enable corporations to get away with
reckless and wanton misconduct by "tort reform" to fix problems that don't
exist.

McDonalds could have saved themselves a great deal of trouble if they hadn't
chosen to act in an arrogant, high-handed and contemptuous manner toward the
public and the courts. McDonalds did the legal equivalent of deliberately
pouring a scalding cup of coffee in their own lap, then screeching like a
banshee when they got burned.

Arguments against tort law in this regard seem to state that responsibility is
only for individuals, while corporations should be able to deliberately cause
hundreds of injuries, while making a huge profit from the public, without any
repercussion whatsoever or even having to clean up their own mess.

This effectively would dump the burden of their injurious and harmful conduct in
the lap of the taxpayers who would end up paying for injuries like those
suffered by Stella Liebeck. The corporations would enjoy the entirety of the
profits, while the public would suffer the entirety of the injuries callously
and recklessly inflicted by corporations.

In this case, McDonalds would be dumping their scalding hot coffee in the lap of
the public. I see no reason why they should be allowed to do so simply because
of the fuzzy thinking of ignoramuses.

Tam wrote: On 10/6/04 14:11, in article As a note, I"m from Albuquerque and worked with many PI attorneys during that case. ... Like it or not, but this case is, to most lay folks, an example that the system is broken beyond repair. That's because "most lay folks" don't know, and don't care to know, that the case never went to appeal: it was settled. And the reason it was settled and not fought further was (as has been said but perhaps not read) that the insurer acting for the franchisee had made some (from the point of view of the defendant) tactical errors.

Most lay folks and many who are 'in the business' think the system is broken
because such cases aren't thrown out as silly before even getting started.
It has nothing to do with the actual procedure or if the case was setttled
or whatever after. That such a fully idiotic case can even find its way into
the system or after it somehow had, it manages to pay off, strikes too many
folks as a a benchmark demonstrating the system doesn't exist with any
reason now if it ever did. That there are attorneys who defend this case as
reasonable is funnier than a roomful of clowns to all who aren't in the
profession - and many who are.

I hear a lot of whining and see much hand wringinng from the Bar as well as
members of the Bar about how much contempt the Law and its processes are now
held by the public, but nothing seems to be changing. I mentioned that I'm
in Albuquerque; the home of Stella. About two weeks ago the presiding judge
of our district court was caught trying to evade a DWI checkpoint. He had at
least double the legal limit in blood alcohol percent, was married, but had
his young girlfriend in the car as well as a good supply of cocaine. Just
throw that on the pile with Stella and consider how the public views the
legal system. Settled cases do not normally establish precedent and never establish any precedent beyond the level of the court below (in this case, the trial court). Usually or often the terms of settlement are confidential.

Precedent has nothing to do with it. A careless old woman sloshed coffee on
herself. She was burned more badly than otherwise she would have been due to
wearing sweat pants which held the coffee's heat more than, say, thin cotton
or wool would have and they sue the coffee vendor? Why not the manufacturer
of the cup because it bent when she squeezed it with her knees? I mean,
couldn't the coffee cup maker have foreseen that folks use their cups in
drive in windows so must drive off with them in between their knees? Why not
sue the sweat pants maker? Did it have a warning about hot liquids? I mean,
surely the sweat pants mfg must have foreseen that someone may have eaten
hot foods while wearing the pants. First degree burns are terrible; the plaintiff suffered egregiously. In fact, though, must victims of suffering never get compensated. Tort reform would make sure even fewer do.

I don't care if she died. She did it to herself. That's a social choice: look abroad to see how much cheaper, riskier, less contentious and socially beneficial the situation is. Or is not. Since most judgments are paid by insurance, look to see how much cheaper insurance is abroad. If it is.

There are too many extraneous factors involved. The issue isn't only
insurance costs, but the cost to society when we always find external blame
to our internal screwups. That's the damage the legal system does. Someone
*else* is always at fault. So we spend all day watching TV, eating blubber
sandwiches, drinking gin and when we develop type II diabetes, we sue
McDonalds. There is no point getting mad over the case, any more than there is any point in being mad because you didn't buy a ticket for the Thunderball lottery. The cost to you, and the chance of winning if you had, are essentially zero in each, respectively.

The dollar cost to me was nothing. The cost to society having lost faith in
the most basic institution - the legal system - is incalculable.

-paul

ptsc wrote: You may find it unconvincing, but no competent court would have. In fact, those were not mere complaints, but claims which were settled by McDonalds. If you don't think that 700 previous instances of an event that caused harm was an indication that the tortfeasor should have changed its conduct, then I wonder exactly how many you would consider sufficient. 700 thousand? 700 million?

Too darn many lawyers I know were ashamed of their profession when this one
came down. A good friend of mine and an aggressive PI attorney who practices
solely at the plaintiff's Bar is one of them. I'm not saying this is
universal, but it's hardly universal that competent courts agree with this
ruling. The undisputed facts of the case are as follows: http://www.osmond-riba.org/lis/essay_mcdonalds.htm * Stella Liebeck, age 79, was a passenger in the car. * The car was at a full stop so she could add cream and sugar to her coffee. [She was not the driver and the car was not moving.] * The cup tipped and spilled over her lap.

All right. I've had it with the apologists of this garbage. The 'cup tipped'
eh? It just developed legs or was it arms and then decided to attack
Stella? If you really see the world this way, I suppose you see a whole
variety of inanimate objects to blame for harming hapless humans. I mean
guns walk out of closets and shoot folks; cars run wild and flatten folks;
toasters lure the innocents into sticking knives into them.

Since you see the world where cups just tip over outside of all human
control, I suppose from your world view, you're right. Stella was a victim.
For me, I'm outta this thread.

-paul

ptsc <ptsc@nowhere.com> wrote in message
news:<o0pmc0tsmrdlht4dpag8qjf3fonuqdgqip@4ax.com>...

In this case, McDonalds would be dumping their scalding hot coffee in the lap of the public. I see no reason why they should be allowed to do so simply because of the fuzzy thinking of ignoramuses.

This is hyperbole. The plaintiff obtained a good settlement (of
unknown amount, much less than the judgment) because of poor judgment
not by McDo but by the franchisee's insurer.

Nearly all similar lawsuits by others have failed.

The notable accomplishment of the McDo suit was to cause the makers of
disposable take-away coffee cups to develop a safer cup.

That, philosophically and practically, is and should be the purpose of
tort law. The safer cup would never otherwise have been invented or
bought.

Paul Cassel <paul1@abq.com> wrote:Most lay folks and many who are 'in the business' think the system is brokenbecause such cases aren't thrown out as silly before even getting started.

The only valid reason I can think of for throwing a case out as "silly
before even getting started" is that the plaintiff has no chance of
winning. The plaintiff won. Ergo, it wasn't "silly before getting
started".

[snip]... That there are attorneys who defend this case asreasonable is funnier than a roomful of clowns to all who aren't in theprofession - and many who are.

I'm not in the profession. It makes sense to me. McDs _knew_ they
were selling a dangerous product -- one that was more dangerous than
consumers could be expected to realize (see below). Stella was burned
horribly. She put in a claim for her medical expenses. ONLY her
medical expenses. Nothing for pain and suffering, she just wanted
McDs to pay for her hospital treatment. They could have said, "we
think you're partly at fault, we'll pay 2/3" and probably gotten a
settlement. For some reason they made a ridiculously low offer. They
gambled they could win in court. They lost. The jury thought they
were arrogant and awarded punitive damages. The purpose of punitive
damages is to discourage a repeat of the offense.

Why was it more dangerous than consumers would realize? Have you
ever spilled a hot drink on yourself? I have. It hurts. You get
a 1st degree burn. If you're fast, you get it under cold running
water and keep it there for 1/2 hour, and you'll be back to normal.

That's for the average hot drink, at around 140-150F. McDs coffee was
much hotter, around 185F.

Now it's true that coffee will taste better if it's brewed at a high
temperature. So it might not be unreasonable for McDs to brew it that
hot -- better tasting coffee is s competitive advantage. But if you
_hold_ it at a high temperature, it will taste burned pretty quick.
There was nothing to prevent them from brewing it hot, then quick
cooling it. A mass-production setup like McDs could just pass the
coffee through refrigeration tubes on its way to the cup. Or brew it
a little bit strong and pour it over a teaspoon of crushed ice. By
the time the consumer gets it, the ice is melted and the coffee is
drinkable -- and won't inflict 3rd degree burns.
I hear a lot of whining and see much hand wringinng from the Bar as well asmembers of the Bar about how much contempt the Law and its processes are nowheld by the public, but nothing seems to be changing. I mentioned that I'min Albuquerque; the home of Stella. About two weeks ago the presiding judgeof our district court was caught trying to evade a DWI checkpoint. He had atleast double the legal limit in blood alcohol percent, was married, but hadhis young girlfriend in the car as well as a good supply of cocaine. Justthrow that on the pile with Stella and consider how the public views thelegal system.

Yes, there are bad judges. Not just in ABQQ. You can look all the
way to the top, at the behavior of Justice Scalia in the recent case
involving his personal friend, VP Cheney, from whom he had accepted
valuable favors.

[snip]I don't care if she died. She did it to herself.

OK, you're in effect advocating a return to the old rule of
"Contributory Negligence". That means that if you were even a teensy
bit negligent, you get nothing. That would avoid the Stella case
problem. But it also resulted in a whole lot of other injustices.
Which is why nearly every state switched to comparative negligence.

Personally, I think I would favor a change to what I might call
"double comparative negligence". First you compute who is negligent
how much. Then you double the plaintiff's negligence and reduce the
award accordingly. So if half the fault (or more) is yours, you get
nothing. If you were 40% at fault, you get 20%. Then the remainder
is split among the defendants in proportion to their degree of fault.
The dollar cost to me was nothing. The cost to society having lost faith inthe most basic institution - the legal system - is incalculable.

Now here you have a point. The law really _has_ gotten too complex.
"Ignorance of the law is no excuse", but "the law" consists of many
millions of words, and further changes in unpredictable ways. If that
"ignorance" rule were taken literally, everybody would have to spend
all day reading the Congressional Record plus their state equivalents,
to see what new laws have been passed. And then read all the decisions
of every appellate court in their state, plus at least 3 federal
courts -- their local District Court, their Circuit Court, and the
Supreme Court.

Even lawyers can't keep with all of it, which is why they specialize.

What has really happened is that we are trying to create a set of
rules for how people will live together. Goedel's Theorem says that
any sufficiently complex system will be either incomplete (not cover
everything) or inconsistent. I think it is obvious that the law is
"sufficiently complex". Hence, there will always be some cases that
aren't covered but "should" be, or worse yet the system will contain
contradictions. Problem: given any system that contains a
contraction,you can derive _any_ statement whatsoever.

History: we saw what happened when the rules were made by a king, who
decided whatever he liked. So we decided to go for a system of laws,
in the hope that would be fairer, easier to live with. But _any_
system eventually breaks down. It just gets too complex, too
top-heavy. And people find ways to take advantage of it, to the
detriment of other people who don't spend all their time looking for
the loopholes.

So that's where we are now. The system of law we have is too complex,
too easily manipulated by the dishonest and those who don't want to
take responsibility for themselves. Changes like "tort reform" and
"sunset laws" won't fix it, they just make more loopholes for the
clever to take advantage of.

I'm afraid the only thing to do is let the system run down.
Eventually we will either have a revolution against a system that
benefits the few at the expense of the many, or some other country
with a culture and economy less burdened by rules and regulations will
replace us as the leader of the world. And they just might decide to
annex us, whether we like it or not.

I'm not looking forward to either of those results. I'm 57. I could
easily live another 25-30 years. And I'm well off, so I certainly
don't want to see a revolution. But it's likely to happen, whether I
want it or not. I just hope I'll be able to see it coming and find
someplace to run before it catches up with me.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

tamsuraiya@yahoo.ca (Tam) wrote in message
news:<ilvtc09u1o71gp69ih03000fegf2it5r0e@4ax.com>... The notable accomplishment of the McDo suit was to cause the makers of disposable take-away coffee cups to develop a safer cup.

Other than a statement which is blatantly fault (the empty cup that
formerly contained my lemonade declares "Caution Hot") how have cups
become safer?

The Trial Attorneys site used to say (may still) that that McD's
coffee became cooler, and as I said, when I've tested coffee around
here, it's cooler than the coffee noted in the story.

Personally, I miss glass click-clacks. (OTOH, my daughter managed
to give herself a black eye with one of those fluid-filled "yo-yo"s
with an elastic tail.)

People _do_ take calculated risks.

--
- David Chesler <chesler@post.harvard.edu>
Iacta alea est

In article <o0pmc0tsmrdlht4dpag8qjf3fonuqdgqip@4ax.com>,
ptsc <ptsc@nowhere.com> wrote:On Thu, 10 Jun 2004 09:11:15 -0400, "Paul Cassel" <paul1@abq.com> wrote:
I personally think that the plaintiff's argumentthat the restaurant chain had had 700 complaints about hot coffee so itshould have modified the temperature unconvincing.You may find it unconvincing, but no competent court would have. In fact, thosewere not mere complaints, but claims which were settled by McDonalds. If youdon't think that 700 previous instances of an event that caused harm was anindication that the tortfeasor should have changed its conduct, then I wonderexactly how many you would consider sufficient. 700 thousand? 700 million?

700 instances would be a lot if they'd server 70,000 cups of coffee
(that's a 1% incidence). At 7,000,000 cups of coffe, that's 0.01%
causing such problems. At 7,000,000,000 cups of coffee, that's
0.00001% causing problems.

It isn't absolute numbers that matter here, it's percentages.

Seth

On Tue, 15 Jun 2004 09:54:37 -0400, "Paul Cassel" <paul1@abq.com> wrote:
Tam wrote: On 10/6/04 14:11, in article
As a note, I"m from Albuquerque and worked with many PI attorneys during that case. ...
Like it or not, but this case is, to most lay folks, an example that the system is broken beyond repair.
That's because "most lay folks" don't know, and don't care to know, that the case never went to appeal: it was settled. And the reason it was settled and not fought further was (as has been said but perhaps not read) that the insurer acting for the franchisee had made some (from the point of view of the defendant) tactical errors.Most lay folks and many who are 'in the business' think the system is brokenbecause such cases aren't thrown out as silly before even getting started.

You would prefer, instead, that the damages caused to hundreds of people by
McDonalds be picked up by Medicaid and paid by the taxpayer, rather than cost
McDonalds less than one percent of their profits from selling too hot coffee?

Why are the taxpayers a better target than a multibillion dollar corporation
that deliberately chooses to cause hundreds of injuries?
It has nothing to do with the actual procedure or if the case was setttledor whatever after. That such a fully idiotic case can even find its way intothe system or after it somehow had, it manages to pay off, strikes too manyfolks as a a benchmark demonstrating the system doesn't exist with anyreason now if it ever did.

This statement contains zero facts, in stark contrast to the very specific
details contained in posts defending the case.
That there are attorneys who defend this case asreasonable is funnier than a roomful of clowns to all who aren't in theprofession - and many who are.

That there are people who would prefer to dump billions of dollars in damages
caused by highly profitable and illegal actions that cause injury in the laps of
the taxpayers, letting corporations completely off the hook, is not funny at
all. It is pathetic.
I hear a lot of whining and see much hand wringinng from the Bar as well asmembers of the Bar about how much contempt the Law and its processes are nowheld by the public, but nothing seems to be changing. I mentioned that I'min Albuquerque; the home of Stella. About two weeks ago the presiding judgeof our district court was caught trying to evade a DWI checkpoint. He had atleast double the legal limit in blood alcohol percent, was married, but hadhis young girlfriend in the car as well as a good supply of cocaine. Justthrow that on the pile with Stella and consider how the public views thelegal system.

This is completey irrelevant ad hominem that doesn't get within a mile of the
merits of the case. So is the rest of your post urging that corporate practices
that cause hundreds of injuries should be encouraged and rewarded, rather than
discouraged and punished, as occurs in a civilized society.

On Tue, 15 Jun 2004 09:54:38 -0400, "Paul Cassel" <paul1@abq.com> wrote:
ptsc wrote:
You may find it unconvincing, but no competent court would have. In fact, those were not mere complaints, but claims which were settled by McDonalds. If you don't think that 700 previous instances of an event that caused harm was an indication that the tortfeasor should have changed its conduct, then I wonder exactly how many you would consider sufficient. 700 thousand? 700 million?
Too darn many lawyers I know were ashamed of their profession when this onecame down. A good friend of mine and an aggressive PI attorney who practicessolely at the plaintiff's Bar is one of them. I'm not saying this isuniversal, but it's hardly universal that competent courts agree with thisruling.
The undisputed facts of the case are as follows:
http://www.osmond-riba.org/lis/essay_mcdonalds.htm
* Stella Liebeck, age 79, was a passenger in the car. * The car was at a full stop so she could add cream and sugar to her coffee. [She was not the driver and the car was not moving.] * The cup tipped and spilled over her lap.
All right. I've had it with the apologists of this garbage. The 'cup tipped'eh? It just developed legs or was it arms and then decided to attackStella? If you really see the world this way, I suppose you see a wholevariety of inanimate objects to blame for harming hapless humans. I mean

There are a whole variety of inanimate objects which are not served at drive
through windows. Anything capable of causing third degree burns should not be
served at a drive through window, since it is a reasonable consequence that any
fool can see that this will result in a high incidence of injury.

Where is your outrage at a reckless and irresponsible practice by a corporation
which has teams of scientists working for it, which despite being told about the
potential liability of actions like this, chooses to engage in actions which
they are entirely aware will cause damages, and which after paying off 700
injury claims as a result of their reckless practices, arrogantly chooses to
continue doing so?

How many people does it take before you see that it's a ridiculous practice to
serve coffee that hot at a drive through window? This is not rocket science.
What would they need to serve at a drive through before it seemed unreasonable
to you? Would they need to serve molten lead? Radioactive waste? What
practice would be ridiculous enough to reach your threshold for
irresponsibility?
guns walk out of closets and shoot folks; cars run wild and flatten folks;toasters lure the innocents into sticking knives into them.
Since you see the world where cups just tip over outside of all humancontrol, I suppose from your world view, you're right. Stella was a victim.For me, I'm outta this thread.

That's probably because you can't defend something so ridiculous with a straight
face any more. And contrary to your ludicrous assertion that I think cups "just
tip over" without human intervention, it is you who seem to think that only
individuals should bear responsibility for their actions, while corporations
should get carte blanche immunity for anything they do, no matter how
deliberately reckless and knowingly malicious.

If you serve liquids capable of causing third degree burns at a drive through
window, injuries will follow as surely as a pair of dice will come up snake eyes
1 time in 36. Giving corporations carte blanche immunity for actions of this
kind, while dumping the resulting medical bills in the laps of the taxpayers and
allowing the corporations to profit from their misconduct, actively encourages
and ensures repetitions of this kind of misconduct.

This is a result I find it unimaginable that anyone wants, as you appear to.

On Thu, 17 Jun 2004 22:35:19 -0400, sethb@panix.com (Seth Breidbart) wrote:
In article <o0pmc0tsmrdlht4dpag8qjf3fonuqdgqip@4ax.com>,ptsc <ptsc@nowhere.com> wrote:On Thu, 10 Jun 2004 09:11:15 -0400, "Paul Cassel" <paul1@abq.com> wrote:
I personally think that the plaintiff's argumentthat the restaurant chain had had 700 complaints about hot coffee so itshould have modified the temperature unconvincing.
You may find it unconvincing, but no competent court would have. In fact, thosewere not mere complaints, but claims which were settled by McDonalds. If youdon't think that 700 previous instances of an event that caused harm was anindication that the tortfeasor should have changed its conduct, then I wonderexactly how many you would consider sufficient. 700 thousand? 700 million?
700 instances would be a lot if they'd server 70,000 cups of coffee(that's a 1% incidence). At 7,000,000 cups of coffe, that's 0.01%causing such problems. At 7,000,000,000 cups of coffee, that's0.00001% causing problems.
It isn't absolute numbers that matter here, it's percentages.

To get 0%, you would have to take unreasonable precautions, such as putting the
coffee in an electronic device that only allowed the coffee to leave when it
reached a safe temperature. This would be an unreasonable expectation.

To eliminate the 700 injuries, or at least mitigate them, all you would have to
do is not serve it at the drive through at temperatures at which it would cause
third degree burns. That is not an unreasonable expectation.

It isn't the percentages or the absolute numbers that matter. It is the
reasonableness of the precaution that would prevent them.

Not serving coffee at temperatures at which it causes third degree burns is not
unreasonable. Coffee out of my coffee machine at home is as hot as it needs to
be. It is not immediately drinkable, but is within a few minutes. However, it
does not cause third degree burns if I spill it in my lap, and I know this from
stupid experience. I would not generally expect to be served anything which
would cause third degree burns at a drive through, at least before studying the
McDonalds cases. It is entirely possible that in fact it would not cause third
degree burns on me, but that it was somehow related to the age of the woman in
question.

But the fact is, those 700 injuries could have been prevented entirely, or at
least mitigated, by an entirely reasonable precaution, and in fact, by not being
deliberately and knowingly reckless.

This isn't rocket science. It's barely even thermodynamics.

In article <hok4d0to50i5ihu9i8cbl8e9evcpjttk9k@4ax.com>,
Barry Gold <bgold@nyx.net> wrote:Paul Cassel <paul1@abq.com> wrote:Most lay folks and many who are 'in the business' think the system is brokenbecause such cases aren't thrown out as silly before even getting started.The only valid reason I can think of for throwing a case out as "sillybefore even getting started" is that the plaintiff has no chance ofwinning. The plaintiff won. Ergo, it wasn't "silly before gettingstarted".

The trial judge reduced the verdict and the parties settled before
the appeal was decided. That means

1. The multimillion dollar jury verdict -- which is what shocked
most people -- was determined by the trial judge to be excessive.

2. The system did not come to a final conclusion as to whether McD
got a fair trial and whether the verdict was justified by the
evidence.


If contributory negligence were a defense to punitive damages
the perceived unfairness of the original system would be
eliminated and cases like Stella's wouldn't come up either.
She might have won $160K but not $2.9 million and the case
wouldn't have caused nationwide anger.

--
John Carr (jfc@mit.edu)

"Seth Breidbart" <sethb@panix.com> wrote in misc.legal.moderated:
[about McD's previously settled 700 claims for coffee burns]700 instances would be a lot if they'd server 70,000 cups of coffee(that's a 1% incidence). At 7,000,000 cups of coffe, that's 0.01%causing such problems. At 7,000,000,000 cups of coffee, that's0.00001% causing problems.It isn't absolute numbers that matter here, it's percentages.

I have to disagree.

700 settled claims is certainly enough to show a pattern of
behavior, specifically that McD took a business decision to pay off
claims rather than reduce the risk of injury. Remember (car
company*) calculating how much it would cost to redesign the (car),
versus how much it would cost to pay off death claims? Punitive
damages are extremely appropriate in such cases, because people who
knowingly cause death or injury FOR MONEY deserve to be punished.
"Tort reform", in this context, is an attempt to end our practice of
holding egregious villains responsible for their actions.

Further, 700 settled claims is not the same as 700 injuries. For
every settled claim, how many other claims were made and never paid
because the claimants didn't have good representation or weren't
persistent? How many people were injured and didn't bother to file a
claim, or tried and were dissuaded by the local manager saying
"Coffee is hot; you should know that"?

Marketers know that only a small fraction of people with a complaint
every let anyone appropriate know about it. I've heard anything from
1% to 10% complain -- let's say 5%. I have no idea of the other
relevant percentages -- let's be generous and say 50% of those who
made a complaint were brushed off by the local manager, and 50% of
those who got to the corporate level gave up without getting a
settlement. Those 700 settled claims would then represent
700/50%/50%/5% = 56,000 -- potentially many more if my two 50%
figures are high, as they probably are.


(*) Was it Chevrolet and the Corvair, or Ford and the Pinto, or some
other company?

--
If you e-mail me from a fake address, your fingers will drop off.

I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.

Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com

chesler@post.harvard.edu (David S Chesler) wrote in message
news:<5pk4d0pbih68juii0vdhj2vh3hl97u4lgi@4ax.com>... tamsuraiya@yahoo.ca (Tam) wrote in message news:<ilvtc09u1o71gp69ih03000fegf2it5r0e@4ax.com>... The notable accomplishment of the McDo suit was to cause the makers of disposable take-away coffee cups to develop a safer cup. Other than a statement which is blatantly fault (the empty cup that formerly contained my lemonade declares "Caution Hot") how have cups become safer?

There is more technology even in simple everyday items than most
consumers appreciate. I read in a law journal a discussion of fallout
from the McDo case, and one of them was said to be a resdesign of
takeaway coffee cups. See, for example:
http://www.socialfunds.com/news/article.cgi/article283.html

Since I don't drink coffee myself, I wouldn't know. Several web sites
discuss the use of paper sleeves to protect hands from the heat (burnt
fingers could cause the customer to drop the cup). Some have said that
coffee is no longer sold at such hot temperatures, but one article
argues that (1) customers won't tolerate colder coffee and (2) the
skin of lips and mouths are far more resistant to heat than other
skin.

That, I'm afraid, is all I have to offer on the subject, legally and
otherwise. Except to say that one may reasonably conclude that much of
the innovation that starts in the USA and not in Europe does so
because of the risk of litigation. And prices where I live (Europe)
are not noticeably cheaper because of the strict limitations on tort
(and delict) recovery.

> How many people does it take before you see that it's a ridiculous practice to serve coffee that hot at a drive through window? This is not rocket science. What would they need to serve at a drive through before it seemed unreasonable to you? Would they need to serve molten lead? Radioactive waste? What practice would be ridiculous enough to reach your threshold for irresponsibility?

All right, all right, I'm sorry I ever brought this up. That said,
even given the full story, I think $480,000 was way too much for
Stella Liebeck's troubles.
Before you ask how much is enough, I'll say $100,000 - $20,000 for her
medical bills, the rest for her time coming to court (lost work time
isn't an issue here since she was retired), attorney fees, court
costs, paying expert witnesses. Of course, we don't know what she
actually received since she ultimately entered into a secret
settlement, it may have been more than $480K but it probably was less.
Probably not a lot less.

It may be ridiculous to serve coffee that hot at a drive through
window but it's also ridiculous to order it as well. She DID put it
between her knees, even if she wasn't driving, something a lot of
people have probably done but when they do that, they assume the risk
of it spilling on them. It's something I just don't do - that's what
my cupholder is for. I agree that McDonalds does not deserve total
immunity here as a warning label on the cup would have made sense, and
the $800 settlement offer they initially made was a total insult but
the fact is, coffee is served hot and meant to be that way. Even the
National Coffee Association agreed that the temperature McDonald's
served it at was optimum and not too hot.

If you don't like it, notice that Dunkin' Donuts has been aggressively
marketing their iced coffee recently. It's pretty good and you won't
get 3rd degree burns if you spill it on yourself.

ptsc wrote: Most lay folks and many who are 'in the business' think the system is broken because such cases aren't thrown out as silly before even getting started. You would prefer, instead, that the damages caused to hundreds of people by McDonalds be picked up by Medicaid and paid by the taxpayer, rather than cost McDonalds less than one percent of their profits from selling too hot coffee?

Why is the concept of *personal* responsibility so alien to you? Are you one
of these PI attorneys who promote these cases to your own profit? Here, you
excuse that the legal system is being used to evade personal responsibility
because there can be no personal responsibility. That is Stella was a
careless old woman who will stick someone with the bill for her being a slob
so let's find the deepest pocket who you don't like the most. The choices
you offer are the coffee vendor or Medicaid. Why Medicaid? Why taxpayers?
Why not Stella herself? She spilled the coffee. The law used to have the
concept of reasonable person's expectations here. Would ANY reasonable
person expect to spill coffee on herself and get away with it?
Why are the taxpayers a better target than a multibillion dollar corporation that deliberately chooses to cause hundreds of injuries?

What have taxpayers have to do with it? Earlier you had the coffee
developing not only a will of its own and spilling on Stella, but also
developing the means to do so. So in your world of the law, here we have a
woman who reasonably believes she can throw hot coffee on herself willy
nilly without sustaining any inconvenience, coffee that has a mind of its
own, an ability to not only move about, but a malicious will and a desire to
attack its drinker.

Now you add some mythical legal debt the public owes to victims of
aggressive coffee cups and your legal theory is complete. Are you Stella's
actual attorney?

Bah, I said I was out of this thread and I shoulda stuck to my guns.

<big snip more fol de rol.>

-paul

John F. Carr wrote:
She might have won $160K but not $2.9 million and the casewouldn't have caused nationwide anger.
Hasn't the Supreme Court since ruled that punitive damages cannot ever
exceed 9 times actual damages, and can only exceed 3 times actual
damages in the most egregious cases ?

Unfortunately, actual damages can include "pain and suffering" so are
still quite arbitrary.

Stan Brown wrote:
Remember (car company*) calculating how much it would cost to redesign the (car), versus how much it would cost to pay off death claims?

....
(*) Was it Chevrolet and the Corvair, or Ford and the Pinto, or some other company?

I don't recall the Corvair case, but Ford was not allowed to
present evidence that the redesign would NOT have saved lives.
The memo was damning as to intent, but they still might have
been able to disprove causation.

--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.

John F. Carr <jfc@mit.edu> wrote:The trial judge reduced the verdict and the parties settled beforethe appeal was decided. That means1. The multimillion dollar jury verdict -- which is what shockedmost people -- was determined by the trial judge to be excessive.

So the system worked after all. That's why we have judges who can
reduce (or even overturn) jury awards they consider excessive, and
appeals courts that can reverse all or part of a trial court's
decision, and so forth up to the U.S. Supreme Court.
2. The system did not come to a final conclusion as to whether McDgot a fair trial and whether the verdict was justified by theevidence.

Which proves nothing. I'd guess that less than 10% of all claims made
ever get as far as a lawsuit, less than 10% of all suits filed get as
far as a trial. And less than 1% of verdicts are appealed.

This is good in at least two different ways:

1. It avoids wasting resources: the defense's time and lawyers' fees,
the plaintiff's time and lawyers' fees, and the court's time. If the
outcome of a trial is predictable, there is no sense putting everybody
through unnecessary pain. Even if the outcome is only predictable as
being "90% of the time between X and Y", settling for some amount
between X and Y makes sense for all but the most butt-headed of
litigants.

_Of course_ most of the time the system does not come to a final
conclusion. McD's doesn't want to waste resources fighting a lost
cause. The plaintiff (and her attorneys) don't want to waste
resources. Would you have _every_ case fought out to a the bitter
end, just to gain some sense of "closure" or some such?

What it shows is that the jury verdict woke McD's up to the fact that
they were being butt-headed about it.
If contributory negligence were a defense to punitive damagesthe perceived unfairness of the original system would beeliminated and cases like Stella's wouldn't come up either.She might have won $160K but not $2.9 million and the casewouldn't have caused nationwide anger.

Now that sounds like a good idea. I'd go further. I would say that
punitive damages should be limited to _intentional_ acts, not merely
negligence or "product liability" (which has an even lower standard of
liability than pure negligence). (Note that _gross_ negligence is
usually considered "intentional" in law.)

Further, I would suggest that the standard of proof should be raised:
the jury should only award punitive damages if they are convinced of
the defendant's wrongdoing beyond a reasonable doubt. Since punitive
damages are _punishment_, they should be subject to the same standards
as in a criminal case.

The only exception I would make is where it is clear that defendants
are being butt-headed in not simply paying the damages. There should
be a penalty for forcing a trial when as far as the jury can see you
had no reasonable defense. (There should be a similar penalty for
cases where the plaintiff is being butt-headed!) In those cases, the
punitive damages should be limited to the amount of actual damages (if
awarded to the plaintiff) or defendant's attorney's fees (if awarded
to the defendant).

That would probably go a long way toward eliminating the anger over
such excessive verdicts, while at the same time discouraging
butt-headed litigants.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.

On Sun, 20 Jun 2004 11:56:37 -0400, "Paul Cassel" <paul1@abq.com>
wrote:
Why is the concept of *personal* responsibility so alien to you? Are you oneof these PI attorneys who promote these cases to your own profit? Here, youexcuse that the legal system is being used to evade personal responsibilitybecause there can be no personal responsibility. That is Stella was acareless old woman who will stick someone with the bill for her being a slobso let's find the deepest pocket who you don't like the most. . . .

Please quit the ad hominem attacks. You're only making yourself look
like a jerk.

The concept of personal responsibility _is_ built into the law. In
New Mexico, it's covered by the comparative fault statute. The jury
found that the plaintiff was partially at fault. Therefore, her award
was reduced by the percenage she was found at fault.

Daniel Reitman

"Chris Johnson" <caj11@my-deja.com> wrote in message
news:glcbd05aohgigchrqh585rpb5pfog5g3q0@4ax.com... If you don't like it, notice that Dunkin' Donuts has been aggressively marketing their iced coffee recently. It's pretty good and you won't get 3rd degree burns if you spill it on yourself.

Ah, but *now* there's the danger of *frostbite*...