Gerald Colbert v. Sonic Restaurants

by Ted Frank on October 19, 2010

As a connoisseur of hot-coffee cases, I’m always excited to see a court get one right. The Abnormal Use blog points us to Colbert v. Sonic Restaurants, No. 09-1423, 2010 WL 3769131 (W.D. La. Sept. 21, 2010). The plaintiff made the usual gamut of “design defect” and “failure to warn” claims, but the court wasn’t buying it. Note that the plaintiff claimed to be injured by the coffee at Sonic Restaurants, yet another refutation of the trial-lawyer claim that Stella Liebeck’s McDonald’s coffee was unusually hot.

{ 14 comments }

1 Ron Miller 10.19.10 at 12:20 pm

Ted, I think you know the real world is more complicated than that. Last week, a guy charged with murdering his wife was acquitted. This does not necessarily mean that OJ was innocent.

Moreover, Overlawyered still has Stella Liebeck as a category. There are only like 25 categories. I can’t see why a 18 year old claim still gets its own category.

2 Paul 10.20.10 at 9:07 am

Ron, in the real world, you order hot coffee knowing it’s hot. In the real world, if you spill it, it’s your fault. In the real world, if you’ve spilled it on yourself before, and you continue to order it, and you spill it on yourself again, it’s still your fault. It’s only in the legal world where these things are even up for debate.

The reason why Stella Liebeck still deserves a tag is that misguided people still think these kinds of cases have merit, and they deserve to know the truth. (Note that I use “merit” in the sense people use it in the real world. I realize that legal “ethics” seem to equate merit with “potential monetary income,”)

3 Bumper 10.20.10 at 9:25 am

From my vantage point rarely will a month goes by that I don’t come across some poor misguided soul whose misconceptions of the Libeck case are sufficient enough to suggest they spend a few minutes reviewing Ted’s excellent analysis. I find that while many people are aware of the case, they are not aware of the facts. Having it available and neatly packaged for consumption is a public service. That and I detest “wars of wit” with unarmed opponents.

PS – Surely you are not suggesting that OJ was anything but innocent?

4 William Nuesslein 10.20.10 at 9:36 am

Ron Miller writes, “the real world is more complicated than that.” I wonder what “that” is. I am lost.

We still talk about the battle of Hastings in 1066, and the Dred Scott case in of 1857. The Liebeck case is a very clear cut about making a deep-pockets claim for an unfortunate accident.

One aspect of the Stella Liebeck case that should be kept in mind is the roll of doctors. I wonder if Ms. Liebeck really needed skin graphs. It is my understanding that it was the jaw dropping medical bills that led Ms. Liebeck to ask for help.

5 The Curmudgeonly Ex-Clerk 10.21.10 at 12:43 pm

Mr. Frank:

In the Liebeck case, the evidence indicated that the coffee was served at around 180 degrees Fahrenheit; whereas, in the instant Sonic case, the best available evidence (testimony of the store manager based on a measurement taken the day after) seems to indicate that the coffee was served at around 169 degrees Fahrenheit. So I do not think this case stands as “yet another refutation of the trial-lawyer claim that Stella Liebeck’s McDonald’s coffee was unusually hot. ”

The apparent temperature difference is substantial (11 degrees), especially if one accepts the expert testimony in Liebeck regarding the variation in time-to-third-degree-burn based on temperature differences. In Liebeck, the plaintiff’s medical expert testified at trial that “it takes less than three seconds to produce a third-degree burn at 190 degrees, about 12 to 15 seconds at 180 degrees and about 20 seconds at 160 degrees.” (Maybe that’s wrong; but, I think we need some demonstration of that fact before we can conclude that Sonic refutes the “claim that Stella Liebeck’s McDonald’s coffee was unusually hot.”)

Also, it is worth pointing out that, in the Sonic case, the plaintiff did not support his products liability causes of action with any expert testimony. The court specifically noted that he did not produce any expert (or other) evidence to counter the defense expert’s claims. It is hard to win any products liability case without an expert. So this case does not seem particularly telling regarding hot beverage litigation. It seeems rightly decided, but for completely uncontroversial reasons unrelated to the nature of the claims themselves.

6 Ted Frank 10.21.10 at 2:46 pm

CC, if you read Colbert in full, you’ll see there’s no material legal difference between 169 and 180 degrees; the defendant would have won in the latter case as well. See also McMahon v. Bunn-O-Matic. Keep in mind also that the lawyer in Liebeck argued that every cup of coffee over 140 degrees was unreasonably dangerous.

Ron, there are several hundred “tags” on the site. There have not been categories for a few years, and “Stella Liebeck” was never a “category.”

7 The Curmudgeonly Ex-Clerk 10.21.10 at 4:06 pm

Well, no, the Sonic case doesn’t say that at all. Which I know, because I did read it in full.

An expert for the defense merely testified — without any opposition whatsoever — that the industry serving temperature varies between 155 and 185. And the only evience available from the restaurant itself indicates that it was in this range, specifically 169.

There’s nothing objectionable about the court accepting credible, uncontradicted expert testimony in this fashion. But there’s really no telling what the court would have done had the plaintiff put forward expert testimony like that offered in Liebeck or otherwise produced some sort of expert opinion.

The court does go on to discuss other hot coffee cases, including McMahon, but that’s all fluff, or dicta in legal parlance, apart from the citation to the Oubre case, which is cited for a legal rule about when a warning is required for hot beverages. The result in the Sonic case turned on the plaintiff’s failure to adduce evidence, not anything decided in McMahon.

For example, in rejecting the design defect claim, the court refers to “a complete failure of proof” on the plaintiff’s part. In rejecting the failure-to-warn claim, the court simply holds that the defendant owed no duty as a matter of law due the plaintiff’s own deposition testimony showing his subjective awareness of the what the court regarded as an objectively open and obvious danger and, per Oubre, because there was “no evidence” that the coffee exceeded the standard industry temperature range such that it would require a warning. So the no-evidence basis for the decision is rather plain from the opinion.

And, as the Sonic court noted, the relevant temperature in McMahon was 179 degrees Fahrenheit. Again, this temperature is a full 10 degrees above the temperature involved in the Sonic case. The Sonic court does not recount a specific temperature with respect to any of the other hot-beverage cases it cites.

It may be the case that the difference between 169 and 180 should make no material legal difference, and maybe other cases might stand for that proposition, but the Sonic case definitely does not make such a demonstration. It’s just a case in which one might draw such an inference based on unopposed defense expert testimony.

8 The Curmudgeonly Ex-Clerk 10.21.10 at 4:58 pm

I also would note that McMahon too involves a failure of proof to a very large degree. As the court recounts, the holding temperature was 179 degrees Fahrenheit; but, astoundingly neither side put in any proof whatsoever about whether this was more dangerous than usual. See 150 F.3d at 655 (“[T]he record lacks any evidence that 170 [degrees] Fahrenheit is unusually hot for coffee. Neither side submitted evidence about the range of termperatures used by commercial coffee makers, or even about the range of temperatures for Bunn’s line of products. The McMahons essentially ask us to take judicial notice that 179 [degrees] is abnormal, but this is not the sort of incontestable fact for which proof is unnecessary.”); see also id. at 658 (“As for costs, the record is silent. We do not know whether severe burns from coffee are frequent or rare.”).

So, again, one is left to wonder what would have occurred had the plaintiffs in McMahon produced competent expert testimony. The only expert evidence that the McMahons seem to have come forward with is an affidavit about how fast third-degree burns would develp from coffee at various temperatures and what those temperatures would do to the structural integrity of styrofoam cups. See id. at 656-57. The court also found this affidavit conclusory to a large extent on the issue of structural integrity and other issues. Id. at 657-58.

I know what your position is, Mr. Frank, i.e., that the expert evidence in Liebeck was flim-flam. And maybe that’s so. McMahon does contain some research conducted by the court itself that at least hints so (without actually finding it to be so). But cases like the Sonic one, or McMahon, in which the plaintiffs fail to come forward with expert proof, or too little to survive summary disposition, do not really demonstrate that fact (except, perhaps, arguably and indirectly — if one infers that they failed to produce expert evidence because no credible expert would support their claims).

As noted by the court, McMahon also was fairly odd in another way, specifically, the plaintiffs were suing the coffee maker manufacturer for failure-to-warn of coffee that they purchased at a convenience store . The court, rightly in my view, was skeptical as to how the manufacturer, as opposed to the convenience store or maker of the cup involved, was to effect the warning advocated by plaintiffs and whether it had any responsibility to do so. See id. at 654-55, 657. This skepticism no doubt influenced the court’s analysis.

9 Ted Frank 10.21.10 at 5:56 pm

This skepticism no doubt influenced the court’s analysis.

Not so; the McMahon expressed surprise that the defendant waived the issue, and then treated it as a non-issue beyond the dicta that implied the defendant shouldn’t have waived the issue.

10 Ron Miller 10.25.10 at 11:39 am

There are “favorites” on the right hand side of this blog that seem to me to be the same as subjects. I don’t think it is a tag; it is up there right now on the right with about 30 other categories.

McDonald’s hot coffee & Stella Liebeck

11 Ron Miller 10.25.10 at 11:57 am

Paul, there is not a lot of raging debate anywhere about current hot coffee cases and few of these claims have been brought over the last 17 years. When they do, they become immediate stories. It is #393,398 on the list of debated tort topics that matter in part because McDonalds and others turned down the temps on coffee after this happened (and no one complained about cold coffee).

Ted says there is no difference between 160 and 180. I think there is. I’m no expert. But how about 300? 350? Is there a point at which it becomes dangerous. Or is coffee just hot and everyone knows it so who cares what the temperature is?

Mr. Nuesslein, I think the “that” in the “world is more complicated that that” referred to in my comment is rather obvious: the results in one case on a general topic don’t tell us much about a 17 year old case. Similarly, a murder acquittal in one case does not tell us much about the merits of another case.

Finally, Bumper. You are telling me that you are talking to someone once a month who you have to explain the McDonald’s case to? Who are these people? 98% of the American people are sold on the “isn’t it silly?” narrative. Who are these people? How do you have occasion to discuss this with them? I find this fascinating.

Understand this: I’m not really talking here about the merits of this case. It was 17 years ago. Even if you think it was ridiculous, there are verdicts in the last year you would find more ridiculous that OJ or Stella if you analyzed the evidence.

No one is pretending the jury system is perfect. Ironically, tort reformers have much better arguments that talking about McDonald’s coffee. (I read this blog because Walter (and Ted) present some of the better arguments and I always want to listen though I do have a different opinion.) Your are obscuring your stronger stuff by not letting go of this. If my wife keeping telling me about something I did in 1993 was so absent minded, doesn’t that diminish her credibility that I am absent minded?

Wait, why am I even telling you this? Go back to where you were. Let’s keep talking about a 1993 accident.

12 Ted Frank 10.25.10 at 1:23 pm

McDonalds and others turned down the temps on coffee after this happened

No, they didn’t.

But how about 300 [degrees]?

300-degree coffee is steam. If someone tried to sell 300-degree coffee, I suspect they would confront dissatisfied focus-group customers long before they confronted lawyers.

For what it’s worth, every single time I have debated tort reform in a public forum, it is the trial lawyer (or law professor) who raises the McDonald’s coffee case. While I’m happy to discuss the case, I never raise it unless I’m asked to; as Ron correctly notes, there are more pressing issues relating to civil justice reforms.

The “favorites” reflect favorite subjects that readers most often Google for and most often want to discuss. They’re tags, as is readily evident by clicking on any of the links there.

13 Ron Miller 10.25.10 at 1:44 pm

Another reality worth nothing here. The vast majority of people who and aghast at the McDonald’s coffee case know nothing about the facts of the case. They just think Plaintiff said, “Hot + I spilled it = money.” That’s it. No matter which side of the coin you are on, you have to admit the average person has no understanding of the facts at all. Even from your point of view, the masses just serendipitously fell into the right conclusion without any real understanding. (We all do this on some issues in a 15 second sound bite world.)

One final thought before I move back to 2010: Plaintiffs’ lawyers see a big verdict in a coffee spill case. Presumably, they rushed in. What was the impact of this? How many spilled coffee verdicts under similar facts have there been in the last 17 years? I really don’t know the answer. But I bet it is few or, more likely, none. If this was such a bad outcome, subsequent history certainly underscores a relatively healthy system.

14 Ted Frank 10.25.10 at 2:04 pm

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