More discussion of the McDonald’s coffee case, the blogosphere discussion of it, and why it’s relevant today on our sister blog, Point of Law (Aug. 4).

One additional point merits discussion: “PG” of Blog de Novo (Aug. 3) makes the oft-heard argument that it was alright for Stella Liebeck to sue McDonald’s for millions because she first tried to settle for her medical expenses. I recently had an experience that shows why this thinking is fallacious.

Forgive me as I make the personal political: One May morning, as I was cutting a bagel, I gouged out a good-size chunk of the finger that happened to be on the other side of the breadstuff. Sadly, neither the knife nor the bagel had a warning tag announcing in eighteen-point bold capital letters the danger of this occurrence, or how painful it might be, or I might have remembered why one doesn’t use one’s hand as the sole means of steadying a bagel while cutting it. Nor was this brand of packaged bagels pre-sliced, as a number of manufacturers take care to do. There, of course, exist knives with safety guards specially designed to cut bagels quickly, efficiently, and painlessly, but this knife didn’t have those features, though it would be foreseeable that some knife users might attempt to slice a bagel with it, and that some of those users would injure themselves in the process. Too, if the knife hadn’t been so sharp, it might have taken me longer to cut the bagel, but I would be less likely to need to visit the emergency room and have four follow-up visits to a doctor. I knew I could hypothetically cut myself with a knife, but it didn’t occur to me I could cut myself this badly.

That’s about five different opportunities corporations had to prevent my injury–a knife warning, a bagel warning, a safety guard on the knife, a pre-sliced bagel, and a duller knife–and someone more creative than me might think of others.

Are the defenders of Liebeck really suggesting that it would be “reasonable” to ask the knife or bagel manufacturer for my medical expenses? And if they refuse, is it appropriate for me to seek compensation for the pain and suffering in temporarily losing typing speed that makes it more difficult for me to blog? (Not to mention the shattered dream of retiring from the law to become a hand model!)

Is this really a case that should go to a jury to evaluate the reasonableness of the lack of warning, lack of safety protections in the knife and bagel, or whether the knife was unreasonably sharp? Many make hay of the fact that McDonald’s was aware of previous coffee burns; note that both knife-makers and bagel-makers have been on notice for years of the danger posed by their product because of a front-page article in a major newspaper. (Cindy Loose, “Experiencing a Slice of Bagel Life: The Less Adept Find the Cutting Edge of a Round Bun”, Washington Post, Feb. 25, 1995.) I can’t find anything in any of the defenses of Liebeck that distinguishes my far-from-uncommon bagel injury from a case of spilt coffee. Every single argument “Curmudgeonly Clerk” makes on behalf of Liebeck is equally applicable to the sad tale of Frank v. Target Brands, Inc., et al.

The Clerk would perhaps respond that the likelihood that a jury would reject my case is sufficient. I like to think I’m a loveable guy, but I’m realistically nowhere near as sympathetic as the average 74-year-old grandmother. (Plus, at the end of the day, my injuries weren’t that severe. “Will I be able to play the piano?” I asked the doctor. “Sure! No problem!” he responded. I was thrilled: “Great! I never could before!”)

But when damages are unmoored from reality, the risk of jury loss ceases to be a deterrent: an auto manufacturer can win 10 out of 11 jury trials making the same allegations of design defect and failure to warn, but still be on the hook for hundreds of millions of dollars (Jun. 3). That’s a profitable game of roulette that the increasingly well-funded plaintiffs’ bar can afford to play–and industry after industry can be forgiven if it looks more like Russian roulette to them.

This site has earlier covered a lawsuit against McDonald’s over a bagel. (Feb. 3, 2003.)

Update, August 12: It made my day that a reader was kind enough to mail me a bagel-slicer.

Filed under: failure to warn, hot coffee, McDonald's, product liability, Stella Liebeck