Tuesday, March 18, 2008

Ford Tough. Ford Smart ...

So, on the tube last night, another commercial, this time for a Ford pickup. (Can't get there by clicking on the image above, sorry, use the link.)

Guy comes out, and narrates as a group of "scientists" hooks a truck via chains to an arm of a huge, rocket-testing centrifuge. The truck is then whirled about, demonstrating the strength of the tow loops under the front bumper.

Aside from the Ford-needs-those-tow-loops jokes, the test doesn't mean much. But the part I liked was, down in the corner in small print, it said:

"Closed centrifuge. Do not attempt."

The classic warning: Don't try this at home, kids.

Well, phooey! I was just about to go out back by the oak tree and hook my wife's SUV up to the centrifuge and give it a whirl, but since they warned me not to, well, I guess I can't ...

Hair dryers come with warnings not to use them in the bath tub. There are street signs I drive by that say "Red Means Stop in Beaverton!" just in front of traffic signals. Like it means something else in other towns. Even some guns come with warnings stamped into the barrels. (Don't point this at your head and pull the trigger! Well, okay, it doesn't say that, but it might as well.)

People sue McDonalds when they hit a speed bump and the coffee cup they have clamped between their thighs spills and burns them. And win in court.

Makes you wonder how bright a species we are ...


Todd Erven said...

Yay for it always being the other guy's fault!

Evan Robinson said...

How long do we have to listen to undiluted crap about the Liebeck v. McDonalds coffee case?

McDonalds was found culpable because they served coffee at 190+ degrees, 20 degrees hotter than any other restaurant in the area, 60 degrees hotter than the recommendation of the Shriner's Burn Institute, and continued doing so after more than 700 reported burn incidents (in the last 10 years) which they'd settled for more than half a million dollars total. And after Christopher Appleton, a McDonald's quality assurance manager, had been deposed in another lawsuit about hot coffee and said "he was aware of this risk…and had no plans to turn down the heat". In other words, they knew their coffee was hazardous, they knew it was hotter than other restaurants served it, and they knew it was hotter than recommended for their industry.

McDonalds was offered several chances to settle for $300,000 or less (including a recommendation by the presiding judge that they do so). They chose not to do so. Several times. With a sympathetic plaintiff, and a lawyer experienced at suing them over hot coffee. How dumb was that?

Liebeck was awarded $160,000 in compensatory damages for 7 days in the hospital and extensive skin grafts as treatment for the 3rd degree burns she received in about 3 seconds (as opposed to 12-15 seconds at 180 degrees). Punitive damages were initially set at 2-4 days of sales or $2.7 million (and since the point of punitive damages is to hurt the guilty party, the scale of damage makes sense) and later reduced to $468,000. And later Liebeck and McDonalds settled for an undisclosed sum alleged to be less than that.

If McDonalds hadn't been so arrogant as to offer her $800 as an initial settlement, or had been willing to settle this case as they had others (with amounts of money that more than covered the cost of treatment), they would have saved a lot of money and bad publicity, and people who don't believe in the rule of law (I don't mean you, Steve, but many others who cite the case) would have one less thing to lie about in support of their position that the free market should not be subject to any sort of regulation including lawsuits.

Liebeck was a perfect example of the system working. McDonalds sold a dangerous product, they did so knowing it was dangerous and carefully deciding not to find out how dangerous, how the danger might be mitigated, or warning customers that their coffee was extra hot (or how fast it would cause burns). All these questions were established at trial. The initial punitive damages were large but not terribly unreasonable, but irrelevant because they were reduced to a very reasonable level by the trial judge.

Liebeck is also a great example of how people who don't believe in our legal system, people who believe that markets should be completely free and unfettered from any regulation, lie in order to provide frames and memes that stick with citizens even though they are not true.

Steve Perry said...

"How long do we have to listen to undiluted crap about the Liebeck v. McDonalds coffee case?"

I dunno. How long are you gonna offer it ... ?

Whatever McDonald's culpability vis a vis how hot the coffee was, somebody who is in a car trying to deal with hot coffee is first and foremost responsible for his or her actions.

Her grandson was driving, the car was parked, and she flubbed it onto her lap. At best, you could blame McDee for part of it. The courts ruled it 80-20% them, and her, respectively. The woman was almost eighty, and I feel for her. But she didn't get to be that old without knowing that hot coffee and laps don't go together, so I would reverse those numbers.

I'm not saying there should be no regulation of products. I'm saying that if you do something stupid, you should eat that.

There was a case in Oregon a few years back. Traveling salesman, checked into a motel. Went out, got drunk, came back in the wee hours. The spa room was closed and locked, so he kicked the door down, hopped into the hot tub, and drowned.

His spouse sued for worker's comp. On the job injury. Law gave it to her.

If you buy a knife, an instrument designed to cut things, and then your cut yourself because of your own carelessness, you don't get to blame the guy who sold you the knife or the one who made it.
Because your new shiv is sharper than those what normally come out of the factory, you don't get to claim that the product was defective.

Coffee is supposed to be served hot. (Tea is supposed to brewed with boiling water, and the the tea schlepers have been sued for burns, too.)

Guy once bought a Winnebago. He was rolling down the road. Set the cruise control, got up, went to go get himself a drink from the fridge.

Left the driver's seat while the thing was moving down the highway.

The RV went off the road and wrecked. He sued and won. Why? Because it didn't say in Winnebago's literature that cruise control didn't equal automatic pilot. The guy was an idiot. So was the court that rewarded him for his stupidity.

Personal responsibility starts at home. If you don't know that spilling hot coffee on your lap will burn you, you ought not to be out in public. Sure, Mickey D's was hotter than normal, but as I recall, this wasn't the first time Liebeck had bought coffee from the Golden Lipids. She knew it was hot, she had bought it before. It said so right on the cup.

If you were from Mars and didn't know? Maybe.

And she was wearing sweatpants, and sat there for a minute and half after she spilled it on herself. "Normal" temperature coffee would have, in that amount of time, burned her, maybe as badly-- it just would have just taken longer. If she had shucked those pants in the first five seconds, she'd have been much less badly burned.

Sorry, it's not the regulation of the free market that's at stake, it's the fools out in the countryside.

Evan Robinson said...

Cruise Control story? False http://www.snopes.com/autos/techno/cruise.asp -- and now often racist (an arab, a "china man", etc. -- doesn't know how to use technology). Supporting one bogus frame with another that happens to be completely false isn't impressive.

Don't know anything about the OR traveling salesman -- can't find a reference easily with that information. As presented, without other information, sounds crazy. But the whole point of this discussion is that most people have a completely wrong idea about Liebeck, so I wouldn't be surprised to discover that there was more to this story than you've related.

By selling coffee at temperatures vastly higher than other local stores, McDonalds effectively sold a "knife" with a sharp handle -- a device intended for one purpose which contained an extreme example of a recognizable hazard. And they knew they were doing it, and they chose not to change their behaviours and they chose not to warn their customers about the extreme temperature.

Nobody expects either tea or coffee to be boiling upon receipt -- and it would be very difficult to actually deliver it that way. In order to be drinkable, hot beverages should be in the range of 140 degrees. McDonalds deliberately provided hotter coffee on the assumption that people will not try to drink it immediately.

There were many possible mitigations McDonalds could have put in place:
* they could put sugar and cream in coffee to order (as Tim Horton's does here);
* they could ask if you were going to drink your coffee immediately and provide a cooler drink, or remind you that this coffee needed to cool for X minutes before being safe to drink;
* they could have put up a warning (not a "reminder", which is what they had -- on the cup, which is like putting a warning about not spilling piss on the heel of a boot) about the temperature of the drinks and how quickly they would burn exposed skin;
* they could have served coffee at a drinkable temperature and offered extra-hot drinks to people who wanted them.

And those are just the ones that occur to me as I sit here.

They chose, instead, to ignore hundreds of burn reports and an unknown number of lawsuits.

The libertarian and republican meme / frame about Liebeck* is "out of control courts and trial lawyers", and it's just not true. If there were a solid legal error in the trial, you can bet that McDonalds would have continued their appeal instead of settling. I've been involved in lawsuits (by being deposed, I hasten to add) and it's not like they go to verdict (hell, even to court) without some validity -- there are lots of ways for a judge to toss an obviously frivolous lawsuit -- and this one got through preliminary hearing, discovery, mediation, trial, verdict, and partway through appeal. The system worked the way it's supposed to work.

As an aside, it's a case that's hard to imagine being brought here in Canada, because the plaintiff never would have spent $11,000 to get her burns fixed.

Steve, you're my elder and I respect you for your experience and ability as a writer. I believe that I understand your essential point: that people should be responsible for their own mistakes. In general, I agree. I think we disagree upon where the line of responsibility falls. I suspect that we would even agree that the line is not sharp but rather fuzzy. If we agree that this case is close to or in the zone of fuzzy demarcation (and let's hear it for him :-)) then I think I'm happy. What concerns me is the unthinking (and often but not in this case duplicitous) use of the "evil courts and trial lawyers" frame. You have absolutely convinced me that your usage is neither unthinking nor duplicitous. I think I should have jumped more softly.

*One of the reasons it's "the McDonalds coffee case" instead of Liebeck is that it makes it harder to counter with the facts of the case.

Steve Perry said...

Okay, if the Winnebago suit is an urban legend, then I sit corrected. Lawyer told me that one, so I should have suspected it right off. Mea culpa.

I do know that in RV literature, it does make that distinction, that cruise control is not autopilot -- because I read that in the stuff that came with mine. You have to wonder why they thought it necessary to address that point.

The Oregon hot tub example is legit -- I know the woman who was the case judge, and she was bound by the law to render a verdict in favor of the widow. He got drunk, kicked in the door, and drowned, all undisputed.

McDonalds should have listened to customer complaints, sure, that's just responsive business practice; on the other hand, people expect coffee to be hot, and I have personally seen and treated burns from coffee and tea no hotter than the hot water tap most homes could deliver. (Hot tubs today come from the factory with a 104 F. maximum setting. First one I owned would crank up to 125 F, though you wouldn't want to do so. Tap water gets that hot, and it takes about five minutes at that heat to cook you.)

Coffee at 140 F will scald you good.

I'm not in favor of the robber barons coming back and taking us down the road to where John Galt lives on the backs of child labor. I'm simply appalled at the kinds of lawsuits that have been litigated -- and here is a top-ten list that has supposedly been vetted:


Granny could have mitigated the damage by waiting for the coffee, which she knew from previous experience was hot, to cool. She could have shucked her pants, but, I suspect, would rather have suffered the burns than the embarrassment.

In martial arts, there is an assumed risk doctrine: If you catch a punch in the nose during class, you knew that was a possibility and if you didn't want the risk, you should have stayed home.

Hot coffee will burn you. I figure that's art of the assumed-risk doctrine. Hot water from the tap will scald your ass. If you don't know that, you ought not to be drinking it or bathing in it. It was at least as much Granny's fault as Mickey D's -- more in my mind -- but juries are a lot more sympathetic to grannies than big soulless corporations, too.

I have seen so much of "It's not my fault!" no matter what happens, and while that line can be fuzzy toward the middle, admittedly, there are simply too many places where it's clear, and wherein the person who spilt the milk did it on his or her own, nobody else's fault.

We are going to have to disagree on this one. I'm big on the Frankenstein Concept: You create it, you take care of it.

Steve Perry said...

Oops. Cut off the .html at the end of the link:


Steve Perry said...

Just curious -- what's your stand on suing McDonald's because you ate their food and got fat?

(I like Larry the Cable guy's response -- that's like suing Hustler because you got carpel tunnel syndrome ...)

Evan Robinson said...

I've just finished reading Gary Taubes' Good Calories, Bad Calories, and I was amazed to read the actual results of studies in nutrition and obesity/diabetes research instead of the government and NGO recommendations.

If McDonalds makes nutritional information available (and I believe they do), I think they should be liable only to the degree that their information is unavailable, inaccurate and/or misleading. Since I suspect the major source of misleading information is the aforementioned government and NGO recommendations, I don't think much of the idea of people suing for getting fat.

Mike said...

When it comes to warnings, my personal favorite came on a ceiling fan I installed several years ago: "Stop Fan Before Cleaning Blades." The thing was, you couldn't read the warning sticker when the blades were moving, so I suppose the fan company was still leaving themselves open to lawsuits.

Terry said...

As far as the can't sue for a sharp knife, several years back, Cold Steel started putting warning labels that stated it was a sharp knife; caution, and we at Boker had to on certain models to mitigate litigation.
Some will sue over anything...