Urban legends and Stella Liebeck and the McDonald’s coffee case

by Ted Frank on October 20, 2005

Thirteen courts have reported opinions looking at product-liability/failure-to-warn claims alleging that coffee was “unreasonably dangerous” and the provider was thus liable when the plaintiff spilled coffee on him- or herself. Twelve courts correctly threw the case out. Another trial court in New Mexico, however, didn’t, and became a national icon when the jury claimed that Stella Liebeck deserved $2.9 million in compensatory and punitive damages because McDonald’s dared to sell the 79-year-old hot 170-degree coffee.

The case is ludicrous on its face, as a matter of law and as a matter of common sense. Eleven years later, this should be beyond debate, yet somehow, it keeps coming up in the blogs, and we keep having to refute it. (Dec. 10, 2003, Aug. 3, 2004, Aug. 4, 2004).

Amazingly, rather than argue that the tort system shouldn’t be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into “urban legends” (Aug. 14, Aug. 16, and links therein). Even the Mikkelsons at snopes.com have made the mistake of buying into the trial lawyer hype, calling the case “perfectly legitimate” and effectively classifying the common-sense understanding of the case as an urban legend.

But the real urban legend has to be that the case has any legitimacy. Worse, this urban legend is being taught to a generation of law students by professors like Jonathan Turley and Michael McCann. Now, any peripheral mention of the McDonald’s coffee case provokes a gigantic backlash from the left, who, while congratulating themselves on their seeing past the common-sense view of the case and being above urban legends, spread a number of urban legends of their own about the case. Witness the 200-plus comment outpouring at Kevin Drum’s Political Animal blog. This post provides a partial rebuttal to some of the things said in that thread, and will hopefully serve as a FAQ in the future.

Kevin Drum: only the “most extreme” support the position of “trial lawyers who sue McDonalds over hot coffee”

False: The main trial-lawyers lobby, the Association of Trial Lawyers of America, publishes an Orwellian “fact-sheet” defending the verdict; many law professors incorrectly teach their students that it was a legitimate case. Indeed, Drum is attacked by several commenters for taking this position.

Commenter cmdicely: the industry standard was to serve at a lower temperature

False: The National Coffee Association of the USA recommends serving at 180-190 degrees; another article suggests industry standard is 160 to 185 degrees.

According to a Sep. 1, 1994 Wall Street Journal interview with Reed Morgan, Liebeck’s attorney, he measured the temperature at 18 restaurants and 20 McDonald’s, and “McDonald’s was responsible for nine of the twelve highest temperature readings.” Which means that, even before one accounts for conscious or unconscious bias in the measurements, at least three, and probably more (what about the other eleven McDonald’s?), restaurants were serving coffee at a higher temperature. And Starbucks serves at a higher temperature today, and faces lawsuits over third-degree burns as a result (Jan. 2, 2004).

Commenter Carl: I presume hundreds, if not thousands of people have been saved from severe burns from unreasonably hot coffee.
Commenter MSR: Go to your home coffee maker and make a cup; it will be at about 140 Fahrenheit.

False: To the extent that McDonald’s and other restaurants lowered the temperature of their coffee, all it did was cost those institutions market share—people like hot coffee, and today Starbucks has gone from a local shop to a dominant national chain, despite prices several times higher than McDonald’s, because they serve their coffee hotter than McDonald’s served it to Stella Liebeck, recommending a temperature of 175 to 185 degrees. Starbucks faces suits over third-degree burns hot coffee cases (Jan. 2, 2004), and so does McDonald’s Aug. 13). And, moreover, while in the early 1990′s home coffeemakers only brewed up to 130-140 degrees, today people can and do buy far more expensive and higher-quality coffeemakers that can serve coffee at the 190-to-200-degree temperature that coffee is supposed to be brewed at.

I’ve seen no data that suggest that the small number of people who’ve burned themselves on hot coffee has gone down. If it has, it’s far more likely that the publicity over Stella Liebeck has caused people to be more careful with their hot beverages, and because coffee sleeves, a product invented shortly before Liebeck’s suit went to trial, have become a popular way for restaurants to save paper with the added benefit of additional safety.

Commenter Robert: McDonalds coffee was not only hot, it was scalding – capable of almost instantaneous destruction of skin, flesh and muscle.

False: Stella Liebeck suffered terrible third-degree burns because, while wearing sweatpants that absorbed the liquid and held it to her skin, she sat in a puddle of hot coffee for over ninety seconds.

Commenter Stefan: The burn victim offered to settle with McDonald’s for a token sum (around $10,000 if memory serves)

False: Liebeck asked for $20,000, and then, later, $300,000 to settle before trial. McDonald’s offered a token sum. And why should McDonald’s offer any money when they hadn’t done anything wrong?

Commenter Jeffrey Davis: I’m trying to imagine anyone who was injured that way and that severely not seeking redress. And failing.

Well, Angela McMahon suffered third-degree burns from spilling coffee on herself, and sued on the identical legal theories that Stella Liebeck did. Her case was correctly thrown out, even though the defendant waived the most obvious legal defense.

The tort system is meant to deter wrongdoing; the mistake of the left is the increasingly successful attempt to make the main purpose compensating the injured, and redistributing wealth from wealthier bystanders tangentially related to the victim who haven’t done anything wrong. The tort system is a remarkably inefficient means of performing this task, which is why litigation reform is needed.

Commenter MSR: One other point about the McDonald’s case that should be mentioned here. The award to the woman for injuries was about $130,000 or 13 times her original request. Enough to cover her costs and send a message that it’s better to just settle than take a loosing [sic] case to court.

False: The jury award was $2.9 million. The court lowered this to $650,000. Both Liebeck and McDonald’s appealed, and then settled, allegedly for something close to, if not identical to, the final judgment. McDonald’s didn’t have a losing case: it was only the error of the judge in letting the case get to the jury combined with the error of the jury that caused them to lose. The fact that a defendant can exposed to many multiples of actual damages is one of the serious problems of the tort system. Even when 9 out of 10 juries get it right, if the tenth jury awards ten times as much damages as it should, it undoes the work of the juries that exonerated the defendant. This encourages lottery litigation. (E.g., Jun. 3, 2004).

Commenter MSR: In the course of the trial, as others have noted, it was made clear that the coffee was much closer to boiling than to the temperature of ordinary coffee

False: As noted, coffee is supposed to be that hot, and people prefer coffee that hot, and Starbucks serves even hotter coffee today.

Commenter MSR: many people had been injured (some 700 over the previous decade)

Misleading: McDonald’s sells billions of cups of coffee. There had been 700 complaints over hot coffee in the previous decade, which translates into a complaint rate of 1-in-24-million, with only a small fraction of the complaints reflecting injuries as severe as Liebeck’s. By comparison, 1-in-4-million Americans will be killed by lightning in a given year, and 1-in-20-million Americans (and a much higher ratio of American toddlers) drown in 5-gallon buckets in an average year.

Commenter MSR: the complete absence of any warning that the coffee was nearly at the boiling point

False: Aside from the “open and obvious” danger that coffee presents that should eliminate a warning, Stella Liebeck’s cup did have a warning! The jury thought it was “too small”, which reflects the problem with failure-to-warn claims—one can always second-guess a warning after the fact, because it’s always possible to give a more extensive warning. And defendants are caught in a trap, because if they give too many warnings, they’re accused of failing to warn by burying the important warnings in a morass of unimportant warnings. At what point does common sense come into play?

Commenter theorajones starts off correctly noting that the McDonald’s coffee case is a no-win argument for liberals, but then blows the winning streak when she invokes Valerie Lakey.

Commenter Alek Hidell: it was McDonald’s, not Ms. Liebeck, that forced a trial (and the subsequent “jackpot award”), was it not?

Why is it the defendant’s fault for “forcing a trial” by refusing an unreasonable settlement demand? It’s blaming the victim to say that the shopkeeper brought on his own broken knees because he refused to pay Tony Soprano protection money. McDonald’s was entitled to a fair trial when the plaintiff insisted on going forward, and didn’t get one.

Commenter Cyan: many of these claims were settled

Misleading. Yes, McDonald’s took responsibility when one of its employees spilled coffee on a customer and settled cases of burns from such spills. Because a coffee-spill is usually the fault of the person who spilled the coffee. The Liebeck jury and judge decided to mostly blame the deep pocket instead.

Update: Check out this British legal analysis of similar cases brought in the UK.

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1 Jon C. 10.19.05 at 10:03 pm

“Stella Liebeck suffered terrible third-degree burns because, while wearing sweatpants that absorbed the liquid and held it to her skin, she sat in a puddle of hot coffee for over ninety seconds.”

Can this possibly be true? A third-degree burn means the flesh is charred all the way to the bone. Liebeck’s burns were that bad? If so, it’s hard to come to any other conclusion other than that Liebeck was intentionally trying to injure herself.

2 Ted 10.19.05 at 10:52 pm

A third-degree burn doesn’t mean the flesh is charred all the way to the bone. I don’t think that Liebeck was trying to intentionally injure herself.

3 Xmas 10.20.05 at 10:26 am

If I remember the details of the case correctly:

She was an old woman.

She placed the hot cup of coffee between her legs and started driving.

The coffee spilled over her lap.

Imagine the effect of squeezing a full cup of anything enough to burst the cover off the top. That’s a lot of scalding fluid that would have rushed out all at once.

4 Ted 10.20.05 at 10:36 am

To be precise, Liebeck was a 79-year-old passenger in the car, and spilled the coffee when she removed the cup lid to add cream and sugar.

5 Between Lawyers 10.20.05 at 12:23 pm

OverLawyered on the McDonald’s Coffee Case

In my experience, if there is one U.S. case that non-U.S. lawyers are aware of (and want to ask you about in incredulous tones at cocktail parties), it is the McDonald’s Hot Cup of Coffee case. OverLawyered discusses….

6 Deoxy 10.20.05 at 2:07 pm

I can’t find anything on the Liebeck case at Snopes – perhaps they’ve removed it?

7 Craig Jordan 10.21.05 at 12:29 am

I have a couple of points:

1) A judge is not supposed to throw out a case if reasonable minds can differ about whether the case has merit. The seemingly never-ending debate about the Liebeck case should be exhibit A in the argument for why the judge did the right thing by letting the case go to the jury.

2) The tort system is not just about punishing wrongd0ing. Nor is it an insurance system. It is actually a free-market mechanism for ensuring that manufacturers devote an economically efficient amount of resources to product safety. The cost of accidents caused by unsafe products is what economists call an external cost. That means that the cost is born by someone other than the manufacturer of the product.

In that way, the cost of accidents is similar to the cost of pollution. For example, if I have an outhouse near a stream, I can either install a septic system or let the waste drain directly into the stream. It’s cheaper for me to drain the waste into the stream, but it imposes an additional cost on my downstream neighbors, I have benefited by externalizing the cost of my waste treatment.

Products liability laws are intended to internalize the cost of accidents caused by unreasonably dangerous products. By making the manufacturer responsible for paying the cost of accidents caused by its products, the manufacturer can reduce its products liability exposure by investing in safer products. Because the law requires reasonable efforts, as opposed to an absolute guarantee of safety, manufacturers can estimate, though not without some difficulty and uncertainty, the appropriate amount of reduction in liability expense for a given investment in safety and stop making safety investments when the return on investment ceases to make it worthwhile to do so.

This is essentially what Ford did with its infamous Pinto calculation. The problem was not that Ford made the calculation, but that it cynically undervalued the lives that it calculated would be lost as a result of its failure to make the Pinto a safer vehicle.

Whether you believe the Luebeck case was rightly or wrongly decided is really irrelevant to this calculation. McDonalds should care less about individual liability decisions, particularly as any human decision process is going to be flawed, especially when it involves such emotionally charged issues. McDonalds should care about the gross liability from all injuries caused by its coffee and maximize its profit by making investments that will generate a competitive return by minimizing that liability.

The question is the same for those who would judge the tort system. Attacking the system as jackpot justice because there is such variability in individual cases is literally missing the forest for the trees. The question is whether the tort system as a whole is reducing the cost of injuries by more than the safety investments it requires.

While I’ve seen lots of arguments along the lines of the tort system costs jobs or is a hidden tax, those arguments only address half of the question. Any system of safety regulation is going to cost money. The question is, does it cost the right amount of money? Does the amount of money that the tort system diverts into safety measures exceed the amount of money that is saved by the injury reductions achieved by those diversions?

Once that question is answered, which I have yet to see anyone in the anti-tort movement even attempt, the next question is how can we do it better? Would a central command type regime, in which government regulators take it upon themselves to calculate risks and mandate safety investments be a better solution? I don’t think so. Government interventions are rarely as efficient as market forces.

8 Ted 10.21.05 at 7:40 am

I’ve responded on Overlawyered.

9 Overlawyered 10.21.05 at 8:04 am

Responses to comments on yesterday’s McDonald’s coffee posts

Several comments on yesterday’s post merit responses. 1. One commenter invokes the Ford Pinto case, which is interesting because that’s perhaps the most famous anti-reform urban legend of all. He mistakenly says that Ford’s problem…

10 Deoxy 10.21.05 at 11:12 am

“McDonalds should care about the gross liability from all injuries caused by its coffee and maximize its profit by making investments that will generate a competitive return by minimizing that liability.”

Congratulations. Yo’ve just ENTIRELY NULLIFIED the entire concept of “assumption of risk”.

That is, it doesn’t matter if I WANT to buy hot coffee and am willing to take the risk of burning myself – it is ALWAYS the fault of the company, and therefore, I CAN’T buy hot coffee, as it would somehow be someone else’s fault if I hurt myself.

Apply the same theory to knives, and notice how insane that is. No more kitchen knives – someone might get hurt.

And I completely and utterly disagree with you on whether individual cases matter – having someone take millions of dollars from your bank account when you did nothing wrong is a CRIME (commonly called “theft”). Saying it’s “for the greater good” doesn’t change that. Otherwise, I recommend that we take all of your money – after all, it’s for the greater good.

11 Craig Jordan 10.21.05 at 5:10 pm

In your dealings with mass market companies, what avenue would you choose for informing the company that you would like to assume a certain risk? Would you call the CEO of McDonalds and say “Hey Jim! I’d like my coffee extra hot please! Send me down an assumption of the risk agreement and I’ll get it right back to you!”?

Modern commerce would grind to a halt if each sale were accompanied by an individually negotiated agreement about division of risk between the buyer and seller.

If you want to assume risk, find a seller whose risk profile matches your own. In the coffee scenario, maybe you go to a Starbucks instead of McDonalds.

The theory I described is, with some gross simplifications, the way our current products liability system works, and wow! we still have knives. As a matter of fact, I’m thinking about running with scissors when I finish this post.

If you are injured by a dangerous product, you will have to take money from your bank account to pay your medical bills, cover your living expenses while you recover, and take care of all the myriad other costs of suffering an injury, even though you did nothing wrong. Is it a crime for you to have to pay that money? Why is it then a crime for a manufacturer who could have prevented your injury but chose to cut costs instead to have to pay that money?

12 Deoxy 10.22.05 at 10:50 am

No, that does not REMOTELY ressemble our current system. In our current system, the most ridiculously risk averse sets the standard, and the products they cosnider too risky (and can convince a court are too risky) become unavailable.

That doesn’t quite apply to the coffee case (much as people like you would like it to) because every other case like Liebeck has been tossed out of court post haste. If they had succeded, too, Starbucks would either serve cooler coffee or cease to exist.

That is, if Liebeck were correct, it would now be IMPOSSIBLE to buy really, really hot coffee.

We still have kitchen knives for the same reason: suits against the knife companies for people HURTING THEMSELVES with knives always fail. If they were successful (and your logic applies exactly as well to knives), knives would no longer be available, or they would costs thousands of dollars each to cover the unbelievable liability.

Knives are MORE dangerous than coffee. They cause many more injuries each year. If I injure myself with a product that is dangerous as part of its design (knives are sharp, coffee is hot), it is MY OWN FAULT, and it must be, or such products will not be sold.

13 Mr Foo 10.22.05 at 8:19 pm

“We still have kitchen knives for the same reason: suits against the knife companies for people HURTING THEMSELVES with knives always fail.”

Do they? Product manufacturers are increasingly held liable for stupid, self-inflicted injury involving their product.

Maytag lost a case a few years ago when someone was paralyzed by taking a ride in one of their dryers. Some UT doofus sues his fraternity after belly-flopping into a foot-deep wading pool. Bars are liable for selling booze to those who are ‘too drunk’, gun manufacturers are sued when a kid steals his father’s weapon and plugs a buddy, etc. etc.

So, it happens — but not as much as it could, since most people are usually reluctant to sue for something that’s their own damn fault. For now, anyway.

“If they were successful (and your logic applies exactly as well to knives), knives would no longer be available, or they would costs thousands of dollars each to cover the unbelievable liability.”

You mean guns, right? Because if you replace ‘guns’ for ‘knives’, you get the intended result of the Brady Center’s gun lawsuits and similar actions undertaken the the AG of certain states. This is happening right now, and it’s the intended result.

14 EB 10.24.05 at 5:36 pm

Quick question – under what authority was a court supposed to kick the case out?

The way I learned the case in Civil Procedure (from Arthur Miller), the facts of the case as presented to the judge/jury were that McDonald’s served its coffee at 30-40 degrees hotter than what was “normal.” As your links show, that might not be true, but the judge can’t very well take judicial notice of that fact.

Individual cases are won and lost for a variety of reasons. I guess I’ve always thought the purpose of learning some of the justifications behind the McDonald’s case was to understand how such a decision could be reached, not to use it as proof of some immutable larger truth.

Perhaps McDonald’s just hired bad counsel.

15 Deoxy 10.25.05 at 2:24 pm

The judge can indeed make some judgements about fact – in fact, I hope they do, regularly.

Example: I claim that McDonald’s served their coffee 5,000 degrees hotter than normal.

One would hope that the judge would throw that out.

This isn’t quite that obvious, but it’s close.

16 Ted 10.25.05 at 2:34 pm

EB, nothing in my argument that the case should be thrown out relies upon the factual dispute over whether the coffee is actually thirty degrees hotter than industry standard. See McMahon v. Bunn-O-Matic, linked above.

17 Overlawyered 11.18.05 at 9:34 am

Dunkin Donuts coffee also scalds

Litigation-reform opponents regularly criticize the mention of the McDonald’s coffee-case lawsuit on the phony grounds that the McDonald’s coffee was unusually hot, and thus “defective.” A search of this website can find many other lawsuits…

18 Right Mind 11.21.05 at 1:21 am

A $10 Million Coffee Burn

A woman in New York is suing Dunkin’ Donuts after burning herself with hot coffee. She wants $10 million….

19 Llama Maestro 12.02.05 at 3:12 pm

‘Why didn’t McDonalds hire a better counsel?’

Aha, another hidden gem of the Tort tax.

Companies shouldn’t have to consistently pony up the fees to put the best lawyers out there on trials that are inherently dumb. That’s what they are, dumb. Oddly enough, many items come ‘underlabeled’, because most people haven’t achieved the level of retardation/enlightnement to hurt themselves. Household electricity is a significant hazard, and I will rue the day when lighters have frickin ‘Danger, causes fires’ warnings on them.

Until there are enough judges with brains out there (read if you bring a frivolous lawsuit, you pay your lawyer fees, opposing lawyer fees, and compensate the state for having to put up with your s**t), and then throw out cases such as these, it will remain problematic.

I understand the need for legal oversight in cases where neglect or harmful intent is observed, and would even push that inadequate marking and too little safety research exists on some products (but punishing with exorbetent dog-and-pony shows is an unethical and wrong way to do it),
but the problem is that stupid people just won’t understand that life is inherently risky, and that nobody owes you jacks**t if you cause any harm to yourself. You are only legally entitled to the ability to breathe free, the right to say what you wish and do what you wish, and to live without goventment inteference. If you decide to purchase something from another individual or a corporation, that’s a decision you’ve chosen to do.
Caveat emptor: if you think your coffee might be too hot, ASK. If not, then your assumption is irrelevant. Unless there was misleading, gross error, or neglect on the part of the seller that an implied promise (note, no implied promise that coffee wouldn’t need to be handled carefully), then a means of legal (and political) recourse is simply wrong, and the legal system needs to stop selling itself out in these cases.

Common sense isn’t hard to come by, whar irks me are people unwilling to use it.

Up next on the docket: I’m going to sue a paper company over a paperclip. Hooooooray!

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