Monday, September 28, 2009

Mr. Frank takes issue with my statement that McDonald's coffee was "superheated" in my recent guest post here on TortsProf. He writes that other coffee vendors also sold their coffee at 190 degrees. He also states that some home brewed coffee is brewed at that temperature.

Home-brewed coffee is generally brewed at 130 to 140 degrees according to trial testimony in the McDonald's case. The plaintiff's experts testified that, as the temperature of coffee decreases to 155 degrees and below, the risk of serious burns goes down exponentially. Liebeck v. Mcdonald's Restaurant, Inc., Case No. CV-93-02419, Nat'l Jury Verdict (Aug. 1994) (available on LEXIS/NEXIS). In addition, "[t]he plaintiff's attorney offered evidence that at the time of the subject accident, McDonald's sold its coffee at 180 - 190 degrees Fahrenheit by corporate specification. The plaintiff offered expert testimony that at this temperature, if spilled, coffee causes full thickness burns (third degree burns to the muscle/fatty tissue layer) in two to seven seconds." Id. Mrs. Liebeck suffered third degree burns that required skin grafting, painful debridement and disfigurement. The verdict report in the case stated: "The plaintiff's experts testified that for every degree centigrade above 140 degrees Fahrenheit, human skin burns twice as fast. . . The defendants admitted that the company had not studied the time and temperature at which consumers would be subjected to third degree burns in the event coffee is spilled onto their bodies." Id. I think it is fair to say that the coffee was superheated. A jury could have found that McDonald's coffee was marketed with excessive preventable dangers to the consuming public.

The fact that other vendors sold coffee brewed at a scalding temperature does not immunize the vendor from liability. In the famous Ford Pinto case, the placement of the fuel tank and fuel-integrity problems were widespread in the industry. A custom is not necessarily controlling when it comes to tort liability. In the T.J. Hooper case, Judge Learned Hand notes that in most cases "reasonable prudence is in fact common prudence." However, Judge Hand reminds us that "a whole calling may have unduly lagged in the adoption of new and available devices." The T.J. Hooper , 60 F.2d 737, 739-40 (2d Cir. 1932). The custom of serving coffee at 190 degrees is not controlling. Custom is the floor but not necessarily the ceiling of due care when it comes to coffee as well as other products.

When I teach and write about the McDonald's hot coffee case, I present both sides of the issue. Learning how to see a case from both the plaintiff's perspective and the defense perspective is a critically important lawyering skill. I point out that reasonable fact finders can come to different conclusions after considering the same record. In the class discussion as well as our casebook, I ask whether the punitive damages award against McDonald's will 'overly deter' socially beneficial activities. I present the defense view that McDonald's sold 2.5 billion cups of McDonald's coffee against approximately 700 reported injuries as well as the counter-point that reported injuries may underestimate the risk of unreported injuries or "near misses." In my class discussion, I often cite Holowaty v. McDonald's Corp., 10 F. Supp.2d 1078 (D. Minn. 1998), where the court found no design defect SINCE McDonald's coffee was maintained at a temperature standard in the industry. This was an instance where the court treated custom as conclusive as for the existence of a defect. In the Minnesota hot coffee case, the court found the restaurant chain had no duty to warn the consumer since the plaintiff was aware of the risk of hot coffee.

The point of my guest post was to advocate using multiple perspectives, including the plaintiff and the defense views, of the McDonald's hot coffee case. The hot coffee case was widely portrayed by tort reformers as a poster child for tort reform. My teaching point is that there are multiple perspectives and tort lessons to teach from this famous tort story.

- Michael L. Rustad

Hugh C. Culverhouse Visiting Chair

Stetson University College of Law

After 2009-2010 Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program. Suffolk University Law School

https://lawprofessors.typepad.com/tortsprof/2009/09/guest-blogger-mike-rustad-responds-to-ted-frank-.html