Hi ALSBers -
First, Ken, be sure to let that coffee cool before you try to drink it, and NEVER drive to work with it between your legs!
Second, I remembered reading a Wall Street Journal article at the time that I thought was useful in explaining the case. The Wikipedia page had a link, and here it is.
http://www.vanosteen.com/mcdonalds-coffee-lawsuit.htm
Hope this is helpful!
Rick Kunkel
On 6/6/11 10:39 AM, "Kenneth Schneyer" <[log in to unmask]> wrote:
Personally, I always brew my coffee at exactly 190 degrees. With a thermometer. (Picked this habit up from my brother-in-law, who is something of a fanatic on the issue.)
Ken
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Maurer,Virginia G
Sent: Monday, June 06, 2011 11:26 AM
To: [log in to unmask]
Subject: Re: McDonald's judicial decision?
Wikipedia has a surprising clear and balanced entry about the Leibeck (hot coffee) case. There have been other cases on similar facts, both in the US and the UK, sometimes with different results. I have not read the opinions; the Wiki entry, however, summarizes both the facts of the Leibeck case and also quotes from some trial and appellate opinions. The other cases seem to hinge, factually, on the practice of serving scalding hot coffee. Everyone seems to agree that coffee should be brewed at about 200 degrees F. but consumed at about 160 degrees F. McD was serving the coffee at a temperature approaching 200 degrees. In trial, their lawyers argued that coffee must be served at this temperature because the customers do not consume the coffee immediately. They wait awhile, until it is about the "right" temperature when they consumer it. The problem with this theory, which seems reasonable, is that McDonald's marketing research, which was reported on the witness stand I think, belied this theory of the facts: Most of their customers consumed the coffee immediately after driving away from the take out window rather than waiting, as the theory predicted, until they were safely driving 70 mph on the freeway (humour intended). Hence 600+ of them had been seriously burned So McDonald's could not sustain that theory factually. Everyone could agree that consuming coffee at near-200 degrees was unreasonably dangerous; it was a disagreement about when the coffee was to be consumed and whether McDonald's should be obliged to share this information or pay up for the cost of not doing so.
Seems like the logical fix would be to warn the consumer not to drink the coffee until it has had time to cool down -- what, 5-10 minutes? Maybe less. Maybe more. Whatever.
Easterbrook (surprise, surprise) ruled against the plaintiff on appeal in a similar case. I have not read the case and do not know whether it was appeal from summary judgment or from a trial, but, according to the quotation in Wiki (such an authoritative source) Easterbrook's opinion seemed to turn on the factual theory that consumers do not consume the superhot coffee immediately and so it was not unreasonably dangerous for the seller to serve the coffee at scalding hot temperature. Of course, the problem lies in the factual claim or the factual finding (whichever) that the plaintiff did, IN POINT OF FACT, attempt to consumer the coffee immediately at the scalding temperature and was not warned not to do so. Another instance of theory of facts trumping actual facts, as though facts are obliged to follow theory instead of the other way around. [But economists have never been accused of being empirical.] Possibly, however, in the Easterbrook case McDonald's lawyers at the lower court DID sustain a factual finding that the plaintiff's behavior was anomalous and unexpected, and I am unduly harsh on the judge.
Yes, it is tempting to go chase this rabbit, but my desk has rabbits hopping all over it today, and all of them want to be chased. Some just have to get away.
Peter's source says Mrs. Leibeck lost 20% of her body weight, taking her down to 80 something pounds, a weight that can scarcely sustain life even for a very short person.
Why the poo-poohing of Mrs. Leibeck? Does it reflect something so simple as a taste for ridiculing the elderly, especially elderly women? Does that emotion trump factual inquiry?
Virgina G. Maurer, M.A., J.D.
Huber Hurst Professor of Business Law and Legal Studies
Director, Poe Center for Business Ethics
Warrington College of Business
352 256 0295 (cell)
352 376 2867 (home)
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Peter Shears [[log in to unmask]]
Sent: Monday, June 06, 2011 10:56 AM
To: [log in to unmask]
Subject: Re: McDonald's judicial decision?
Liz -
Do you have this?
See you all soon -
Peter.
___________________
Peter Shears
Professor of Consumer Law and Policy
Plymouth Law School
University of Plymouth
PL4 8AA
Tel 01752 58 58 30 (desk)
Mobile 07855 528867
INTERNET (MIME accepted): [log in to unmask]
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Lizbeth Ellis
Sent: 06 June 2011 15:27
To: [log in to unmask]
Subject: McDonald's judicial decision?
Hey Ginny -
Do you have a copy of a judicial decision in McDonald's? I have been teaching it for years (being from NM), and I know the facts you mention from a variety of sources, but I always assumed there wasn't much written by the judge since it was a district court case - anyway, if you actually have a copy, I would love to see it. Liz
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Maurer,Virginia G
Sent: Friday, June 03, 2011 7:17 PM
To: [log in to unmask]
Subject: Re: Dunkin Donuts Lawsuit
Ok, and the Sonic case was absurd and dismissed; there was no legal judgment that his theory was actionable and no substance to the idea that Sonic is obliged to provide the cream and sugar. But do you really think the Dunkin Donuts case was absurd on its face? Well, we don't have the facts so we really cannot assess the merits of the case, but it is not patently obvious to me that it is absurd. I get fed up with students who have "gee whiz" explanations of supposed cases without examining the facts and the legal theory. I like facts. Think of how many people have never actually read the judicial decision in the McDonald's decision and insist that she was driving the car, that her injury was trivial, and ignore the third degree burns in seconds, the 8 days in the hospital, the skin debriding, the evidence of superheated scalding coffee and the refusal to change in the face of 600 people burned. I don't think it is trivial to have the dead burned skin painfully scraped off of ones groin, and neither do MBAs once they read the facts of the case. For most people, facts change eveything. They force one to reframe, even if you don't like the implications of the facts or disagree with the way facts are employed toward an end.
I agree with Lee that adequate notice and assumption of the risk may be the best way to handle most of "these" cases legally. But at some point the facts do not admit the defense, and theory gives way to gross negligence or strict liability in tort.
Virgina G. Maurer, M.A., J.D.
Huber Hurst Professor of Business Law and Legal Studies
Director, Poe Center for Business Ethics
Warrington College of Business
352 256 0295 (cell)
352 376 2867 (home)
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Lee Reed [[log in to unmask]]
Sent: Friday, June 03, 2011 7:37 PM
To: [log in to unmask]
Subject: Re: Dunkin Donuts Lawsuit
I haven't heard anything about better training for restaurant employees and know personally of many instances in which employees have goofed up about what was in the food when the risks were life and death. Profound food allergies and diabetic coma triggered by ignorant food service should lead to law suits. I like the assumption of risk warnings in lieu of adequate training.
On Fri, Jun 3, 2011 at 6:23 PM, Henry Lowenstein <[log in to unmask]> wrote:
As a director on an NYSE listed corporate board, I can tell you that the way the risk is managed at the top in is carrying very good product liability insurance, D&O insurance and the like. That is a cost of doing business and a very large cost of doing business. The insurance industry has become so scared by what they would call "junk" lawsuits like this that they have substantially reduced the limits of coverage a firm can get at any price. The consequence of this kind of suit is and will be an extraordinary reaction by the business. I have no doubt that Dunkin Donuts will simply change there policy and refuse to allow employees to add cream and sugar or any additives to the coffee. Like Starbucks they will make it available and you will mike it yourself and at your own risk. That is how food services react to these things. A chain call Five Guys Hambugers and Logan's Steakhouses have a pail or plate of peanuts you can eat free while waiting for your meal. But they have prominent warnings posted on their doors that the peanuts are served there and are present. If you have a peanut allergy and go in you enter at your own risk and are forewarned.
On the coffee issue I used in class a case (dismissed on summary judgment, U.S. District Court in Louisiana) against Sonic Drive Ins where the man drove up to order his coffee, was given his cream and sugar packets, pulled into a parking space. He then put the coffee on his dashboard so he could add his cream and sugar. He spilled the coffee over himself and tried to sue claiming injury because Sonic would not mix the cream and sugar for him. So it goes. There is a point where the cost to society of these things becomes unconscionable and the judge in this case felt this one surely was the case.
Henry
Henry Lowenstein, PhD
Professor of Management and Law
E. Craig Wall Sr. College of Business Administration
Coastal Carolina University
P.O. Box 261954
Conway, SC 29528-6054 USA
(843) 349-2827 <tel:%28843%29%20349-2827> Office
(843) 349-2455 <tel:%28843%29%20349-2455> Fax
[log in to unmask]
www.coastal.edu <http://www.coastal.edu>
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Maurer,Virginia G [[log in to unmask]]
Sent: Friday, June 03, 2011 6:07 PM
To: [log in to unmask]
Subject: Re: Dunkin Donuts Lawsuit
Yes, how do you manage that risk? I guess you have a stand in the corner where the customer doctors his own coffee. I am thinking, though, that there are lots of risks in the food service industry -- look at the e. coli outbreak in Europe. Salmonella breaks out in Gainesville now and again, and I guess almost everywhere. The business risks of restaurants are daunting -- most fold in a couple of years even without liability. This is one more risk. I guess you use risk management and carry catastrophic insurance. Probably give away a certain number of meal vouchers to show that you care that people threw up all night from your tainted food. Anybody know how this is managed by food startups?
Virgina G. Maurer, M.A., J.D.
Huber Hurst Professor of Business Law and Legal Studies
Director, Poe Center for Business Ethics
Warrington College of Business
352 256 0295 <tel:352%20256%200295> (cell)
352 376 2867 <tel:352%20376%202867> (home)
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of Robert Thomas [[log in to unmask]]
Sent: Friday, June 03, 2011 5:40 PM
To: [log in to unmask]
Subject: Re: Dunkin Donuts Lawsuit
Definitely an interesting case.
I can't help but think about how such a case might play out for companies of different sizes. Win or lose, DD will be selling donuts and coffee after this case is resolved. This case will definitely not put DD out of business.
However, what happens to a small business or franchisee who faces a similar case? Perhaps insurance will cover its liability, but perhaps not.
Just another risk that can drive the small business into bankruptcy.
[cid:3390202927_431114]
On 6/3/11 5:04 PM, Maurer,Virginia G wrote:
Well, yeah. She went into diabetic shock and was taken to an emergency room. DD is lucky it did not have a dead customer on their floor.
Now one might think that the managerial solution would be to hand the sweetener packet to the customer. But preparing the coffee is part of the service DD provides -- their coffee is good value, but not great coffe, and it also avoids the McDonald's hot coffee facts, which stemmed from the customer opening the very hot coffee to add something -- cream?
I wonder how the problem was handled managerially.
To me, these facts are more problematic that the McDonald's facts. McDonald could handle the problem by lowering the temperature of the coffee from scalding hit to the normal recommended temperature at which coffee is served -- and printing "Hot" on the lid. Basically a product liability case with a product liability solution. But having a minimum wage employee make a mistake (which, if it occurred, is what it was) that sends a customer into diabetic shock has no "fix". Sometimes your people will make a mistake and poison your customers, and it is going to happen a certain percentage of the time, varying, presumably, with training and supervision.
It will be interesting to see how the facts play out and how DD handles the matter. Better than McDonald's I would hope.
Virgina G. Maurer, M.A., J.D.
Huber Hurst Professor of Business Law and Legal Studies
Director, Poe Center for Business Ethics
Warrington College of Business
352 256 0295 <tel:352%20256%200295> (cell)
352 376 2867 <tel:352%20376%202867> (home)
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] on behalf of [log in to unmask] [[log in to unmask]]
Sent: Friday, June 03, 2011 4:46 PM
To: [log in to unmask]
Subject: Re: Dunkin Donuts Lawsuit
I'm in Savannah for a bike ride and my phone won't open the link so I can't comment directly, but I am diabetic and recognize that this could be a serious issue for some people.
MAK
Sent from my Continuum Transfunctioner
----- Reply message -----
From: "Daren Bakst" <[log in to unmask]> <mailto:[log in to unmask]>
Date: Fri, Jun 3, 2011 3:50 pm
Subject: Dunkin Donuts Lawsuit
To: <[log in to unmask]> <mailto:[log in to unmask]>
Here's an "interesting" case from Pennsylvania.
Dunkin Donuts is being sued for putting sugar in someone's coffee instead of
artificial sweetener:
http://beta.news.yahoo.com/pa-woman-sues-dunkin-donuts-over-sugar-coffee-161
814275.html
Take care,
Daren Bakst, M.B.A., J.D. LL.M.
Director of Legal and Regulatory Studies
John Locke Foundation
http://www.johnlocke.org
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