Professor Bernstein (also here) and the “Curmudgeonly Clerk” trade thoughts on the infamous McDonald’s coffee case ($2.9 million verdict for Ms. Stella Liebeck, who spilled a 49-cent coffee on herself), with the Curmudgeonly Clerk’s comments demonstrating how thoroughly the plaintiffs’ bar has infiltrated societal thinking.

The Clerk justifies the verdict on a couple of grounds: McDonald’s had 700 previous complaints; and Ms. Liebeck suffered horrific injuries.

To say that there were 700 previous complaints of burns (ranging from scalds to real injuries) from McDonald’s coffee begs the question. After all, 700 is just the numerator. What’s the denominator? The answer is in the tens of billions. A product that hurts one in twenty-four million people is not “unreasonably dangerous”, especially when the vast majority of the 700 incidents were not the sort of grievous injuries Ms. Liebeck had. (McDonald’s had settled previous cases, but the cases were incidents where the McDonald’s employees had spilled the coffee.) However, the jury took the 1-in-24 million statistic not as evidence that McDonald’s coffee was not dangerous, but as evidence that McDonald’s cared more about statistics than people — when in fact the statistic should have been used to throw the case out.

That Ms. Liebeck was surely serious hurt doesn’t change the underlying problem with the lawsuit: Ms. Liebeck was hurt because she spilled coffee on herself. If (as all fast-food restaurants do now) McDonald’s had the obvious statement “Coffee is hot and can burn you” on the cup (a juror later complained that McDonald’s warning was too small), would that have prevented her injuries? True: McDonald’s could have served luke-warm coffee or even iced coffee. But at the end of the day, the proximate cause of Ms. Liebeck’s injuries, as awful as they were, was Ms. Liebeck.

The argument for liability is that McDonald’s chose to serve its coffee hot and should have foreseen that people would burn themselves when they spilled coffee. But, here’s a question: the reason Ms. Liebeck’s injuries were so terrible was because she was wearing a sweatsuit that absorbed the hot liquid and held it close to her skin. Surely, clothing manufacturers can foresee that people will spill hot liquids on themselves. If Ms. Liebeck’s sweatpants had been made out of Gore-Tex or some other liquid-resistant material, she never would have been hurt. What’s the principle of tort law that holds McDonald’s liable, but not the clothing manufacturer?

UPDATE: Curmudgeonly Clerk responds.

I think that Frank gets the denominator wrong where statistical significance is concerned. After all, the relevant inquiry is not what chance you have of being injured while drinking coffee (i.e., # of injuries/# of cups sold and consumed). The question is what would your likelihood of injury be if the coffee is spilled (i.e., # of injuries/# of cups spilled on a person). And the latter fraction yields a result of 1 or a decimal very close to it, because, at the temperatures in question, McDonald’s coffee would not fail to injure a human being.

CC’s proposal makes no public policy sense. By that argument, my bright red Swingline stapler is “unreasonably dangerous” because the likelihood of injury if I were to attempt to staple myself would be 100%.

CC’s calculation is also off: if Ms. Liebeck were wearing Gore-Tex instead of sweatpants, she wouldn’t have been injured by the coffee. Which goes back to my point: any principled grounds for holding McDonald’s liable are equally applicable to the clothing manufacturer. By CC’s definition, the sweatpants are “unreasonably dangerous”, because the odds that a wearer of sweatpants would be injured if they pour a cup of hot McDonald’s coffee in their lap and then fail to remove the garment that is holding the liquid close to their skin is close to 100%.

The denominator of how many cups of coffee were sold without injury is the correct inquiry. For every 24 million cups of coffee that McDonald’s sells, there is one injury (and “injury” is defined very broadly here to include trivial injuries that resulted in complaints) — and thirty of those purchases will be by people who will be struck by lightning that year. Society considers being struck by lightning as the epitome of the exceedingly improbable event. So perhaps something that happens more than an order of magnitude less often than a lightning-strike is sufficiently improbable as not to be unreasonably dangerous?

Frank is simply incorrect to the extent that he suggests that, but for the sweatsuit, Liebeck would not have been injured.

Not in the slightest. CC tries to dodge the question by assuming away the facts, but there are many types of fabric that do not absorb liquid; some of those types of fabric also repel liquid. It’s no more unreasonable to demand that clothing manufacturers account for the dozens of people that hurt themselves because they get boiling liquids on their cotton clothes than to demand that McDonald’s account for the dozens of people who spill coffee on themselves.

The answer to Frank’s last question is that a sweatsuit is not unreasonably dangerous, whereas coffee hot enough to result in burns that require medical attention is.

It would be uncharitable of me to point out that this response assumes the conclusion. But ipse dixit isn’t principled reasoning. (Perhaps CC is claiming that the standard is “hot enough to result in burns that require medical attention.” But an oven (or a heated frying pan or a toaster) is hot enough to result in burns. Are such kitchen implements therefore unreasonably dangerous because one in some X million users of ovens will burn themselves on an oven? CC cannot be making the claim that oven-makers are liable for anyone who burns themselves on an oven.)

Again: it was possible for McDonald’s to sell coffee that wouldn’t burn anyone. But it was also possible for the clothing manufacturer to sell clothing that wouldn’t result in injury if someone spilled coffee on themselves. Of course it’s ridiculous to hold the clothing manufacturer liable in that situation. But the clothing manufacturer is just as much a sine qua non cause as McDonald’s is.

CC makes a correct positive statement that there are states, such as Texas, where one can recover in tort against a defendant who is not the proximate cause of the injury. Which is an additional place where there is a need for tort reform: I am making the normative statement that a defendant who is not the proximate cause should not be held liable.

To summarize, the problems with the Liebeck case are as follows:
1) a product that, through open and obvious consequences, injures one in 24 million people is not “unreasonably dangerous”;
2) the fact that billions of cups of McDonald’s coffee are sold should be per se proof that it was serving its coffee at a temperature that consumers desired, rather than “too hot.” No one was forced to buy the hotter McDonald’s coffee instead of the lukewarm coffee supposedly served elsewhere; if McDonald’s coffee was really undesireably “too hot,” it would be punished in the marketplace for this flaw. Instead, there is public policy by jury, and the millions of customers who, for whatever reason, prefer McDonald’s coffee, are out in the cold;
3) a defendant who is not the proximate cause of an injury should not be held liable for that injury;
4) there is no principled construction of tort law that holds McDonald’s liable for failing to prevent injury in the case of a foreseeable coffee spill, but not a clothing manufacturer for failing to prevent injury in the case of a foreseeable coffee spill, and one can agree that the latter scenario is an absurd proposition for liability;
5) a defendant should not be subject to punitive damages because the jury did not understand that “statistically insignificant” is a technical statistical term, and not an insult; and
6) punitive damages were assessed against McDonald’s based on their coffee sales, which is a punishment for selling a lot of coffee, rather than because of their behavior.

Filed under: failure to warn, hot coffee, McDonald's, open and obvious, personal responsibility, Stella Liebeck