“Hot coffee is back!”

by Ted Frank on September 4, 2009

In an op-ed in the Examiner last week, I express curiosity why the trial bar continues to insist that the infamous McDonald’s coffee case came out correctly decided, to the point that trial lawyer blogs express excitement that a documentary is going to be made about the subject. Of course, if the movie just parrots the urban legends trial lawyers have spread about the case, that would be something else—the fact that the filmmaker was fundraising at the AAJ convention but hasn’t shown her face around any of the tort reform conventions suggests a certain direction about the film.

Speaking of McDonald’s, I’ll be in the Bay Area next week at a couple of law schools giving a presentation called “The Law of McDonald’s: Hot Coffee, Obesity, and Prank Phone Calls” : Golden Gate University Law School on September 10, and UC-Davis on September 11. I’ll also be at UC-Berkeley Law on September 8, and Santa Clara University Law on September 9 talking more generally about tort reform and patent reform specifically.

{ 13 comments }

1 Random Reader 09.04.09 at 8:19 am

I have read various defences of this case, and they’re all along the lines of,

“What people don’t realise is that this was EXCEPTIONALLY hot coffee!” – as if you wouldn’t need to take normal precautions otherwise.

2 scote 09.04.09 at 2:12 pm

Why, yes, RR, it was very hot, at an undrinkable 180 degrees that causes **instant** burns, passed out in flimsy disposable cups being handed to people **driving cars** where spilling on a lap is not only a possibility but a statistical certainty…and the woman did not sue McDonalds when she recieved 3d degree burns down to the bone that required skin grafts, no, she asked McDonalds to pay for her out of pocket medical expenses, nothing more, and they refused.

Yeah, this is a great case for you to attack. My respect for you has gone down a notch.

3 Ted Frank 09.04.09 at 2:17 pm

McDonald’s sells its coffee at the same temperature as Starbucks, Burger King, etc. — all of whom have been sued for burns. You can also get high-quality coffee brewers at home that will make 180-degree coffee. Coffee is supposed to be that hot.

4 Ilya 09.04.09 at 3:14 pm

Scote: give me a break: there is nothing undrinkable about 180 degree coffee.
(No, you cann’t gulp it down, but many people can sip it and like it that way). There is nothing unusual about 180 degree coffee either. Coffee makers wil produce coffee at that temperature. There is NOTHING defective about that coffee.

> when she recieved 3d degree burns down to the bone

So what? You can get 3rd degree burns with 170 degree coffee too.

> she asked McDonalds to pay for her out of pocket medical expenses, nothing more, and they refused

Why should they to pay for her medical expenses if they don’t consider themselves responsible? Out of compassion? If so, why don’t YOU pay for that woman’s expenses out of compassion. And if you don’t pay, then you are a heartless corporation who puts money ahead of human suffering ;-).

And yes, accidents happen, this might be a good argument for Universal Healthcare however, it’s a bad argument for forcing a private company to pay someone’s else expenses.

> and the woman did not sue McDonalds

She did sue McDonalds. Previous history of attempted negotiation does not change that fact.

5 Scote 09.04.09 at 3:35 pm

“McDonald’s sells its coffee at the same temperature as Starbucks, Burger King, etc. — all of whom have been sued for burns. You can also get high-quality coffee brewers at home that will make 180-degree coffee. Coffee is supposed to be that hot.”

You need to differentiate what is appropriate temperature for **brewing** coffee from what is appropriate temperature for placing in a flimsy disposable cup and handing through a driver’s side window to somebody in car, where spilling the coffee on a lap, and being unable to quickly remove the garment or get the coffee off is not only foreseeable but statistically certain.

Your arguments are untenable given those facts, and that you would try to argue against this case, this example of tort done right, where the plaintiff did not try and sue even when she received 3d degree burns from a situation that McDonalds knew was statistically certain based on past incidents, instead she only asked for out of pocket expenses, no pain and suffering damages, nothing–but McDonalds refused. Then they were sued only as a last resort, and they lost, rightly so.

For you to hold this case as a negative example is very hard to credit and, I think, shows you to have a very knee jerk opposition to liability even for entirely foreseeable, and foreseen, negligence.

6 Ilya 09.04.09 at 4:20 pm

Scote:

Entirely foreseeable negligence? How can this be negligence if McD coffee is an incredibly safe product by any reasonable definition of safe product? (That’s of course if you know anything at all about safety engineering).

The court papers give what, 700 burn cases out of billions of coffees served? Something like 1 burn case out of million servings? You have a comparable chance to DIE on your next commute. Are you guilty of entirely foreseeable negligence wrt to your life??

> Then they were sued only as a last resort, and they lost, rightly so.

They lost b/c jury knew nothing about either statistics or safety engineering and fell victims to “compassion” pleas from the lawyers.

7 B Rad 09.04.09 at 4:30 pm

“You need to differentiate what is appropriate temperature for **brewing** coffee from what is appropriate temperature for placing in a flimsy disposable cup and handing through a driver’s side window to somebody in car, where spilling the coffee on a lap, and being unable to quickly remove the garment or get the coffee off is not only foreseeable but statistically certain”

It’s also statistically certain if YOU yourself put a cup of hot coffee that was handed to you between your legs that you’ll spill it. Is this not what happened? Correct me if I’m wrong.

Do you know for certain the the cup was “flimsy”, any less sturdy than what Starbucks, Burger King etc. uses? By your logic, we should eliminate hot drink orders in the drive through, or hand them out in a metal thermos, tightly sealed.

8 PhilG 09.05.09 at 3:14 am

Just as it always seems to be senior citizens who confuse the accelerator and brake pedal and drive through a storefront, it always seems to be senior citizens who try to put cream and sugar into a cup of hot coffee while balancing it between their legs sitting in a car.

9 Bob Lipton 09.05.09 at 8:01 am

I think it’s clear that the real villain in this case is the automobile manufacturer for producing a car that can be driven and braked while driving with a cup of coffee between one’s legs.

Bob

10 R 09.05.09 at 9:33 am

Most cups are flimsy. When I buy a coffee, I make sure it they always give me either an extra cup or one of those cardboard thingamajings made for gripping.

But beyond that, why bring up Starbucks and Burger King?

Do you know that they serve (not brew, but *serve*) coffee that hot?

Why are other establishments really relevant to this case? The incident happened at McD’s.

11 Ilya 09.05.09 at 11:54 am

>Why are other establishments really relevant to this case?

As another argument that hot coffees at that temperature are common and the potential dangers are well known to every adult… In other words, Mrs Liebec should have known what she was doing.

12 No Name Guy 09.05.09 at 7:07 pm

R & Scote: Your ignorance of coffee is telling.

Go take a class on coffee (here in Seattle and also in Portland there are several barista schools). When I was considering opening my own coffee shop, I took a 3 day business & barista class. They cover such matters as the proper manner in which to prepare coffee for maximum quality (flavor).

Drip coffee, they emphazied in the class, should never be left on a heater (it burns the flavor – ever had a cup of office coffee that’s been stewing on the burner for an hour? Yuck). Brew it at the proper temp and immedately transfer to a thermos type holding container (or brew it directly into said container) from which it’s served. Never did they discuss chilling the coffee prior to putting it into a holding container. The coffee is only good as long as the residual heat keeps it at an appropriate tempature.

FYI – espresso is brewed at 198 to 202 degrees F (and 9 bars of pressure). I wonder when coffee shops will get sued for serving those dangerous straight shots of espresso……

13 Random Reader 09.06.09 at 8:55 am

@scote. Ah, but you see, when I was a younger, and randomer, reader, my mother told me that you should always be careful around hot liquids, regardless of their exact temperature.

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