Engineers vs Lawyers 10

I read an interesting article in the Manitoba association publication. For copyright reasons I’ll only post the link

http://www.apegm.mb.ca//keydocs/mpe/mpedocs/03jun.pdf

The article is on page 11 at the bottom of the page.

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[melone]

Couldn't someone drown in that cup of coffee as well? Isn't that unsafe? Should McD's be held responsible if a narcoleptic fell asleep, landed in their cup of coffee and drowned? I agree that if the coffee was too hot, according to existing laws or public safety standards, then they are negligent (even if noone got hurt). However, don't we have at least a small amount of responsibility for ourselves? Do we really want the government to regulate everything?

 

[JOM]

Is there a principle in the Stella case of who can be expected to understand hazards and risks?

I mean, members of the public do not go about their daily lives performing risk assessments on every activity they undertake. We have no choice but to trust that someone else does that on our bahalf.

Why would Stella have known that 185 degree coffee would badly scald her? She would have known that the coffee was hot and it would hurt if she spilled it, but is it her role to minimise the risk and ensure the temperature is a safer 150 or whatever? I've never known the temperature of a black coffee I might order. Never knew there was an issue, but apparently there is.

However, the business proprietor is surely obligated by law to assess risks and minimise them. They were in a position to do that, Stella wasn't.

Just like food safety - the customer isn't the one who ensures the pork roll is free of salmonella - the business poprierator has that duty.

Cheers,
John.

 

[IRstuff]

Punitive damages are awarded by the jury, not the lawyer.

Obviously, the jury agreed that the practices used by McD's fell way beyond a simple accident and that McD's deliberately created a ticking time bomb waiting to explode. Since the standard for punitive damages is usually treble actual damages, the jury thought that McD's deserved less than that break that day.

TTFN

 

[BobPE]

I don't think there is public upswell for coffee temperatures...its rather a public preception...maybe Mc'ds can learn from Starbucks...I think Starbucks already learned from McD's however, they post the warning that "caution, contents hot" on the cup. That warning was all that I believe McD's had to do in response to that case....All that time, money, and effort to warn the public of something they should know. It comes to common sense and its value when its perceived that it is a right of industry to teach common sense, not the individual to have common sense.

I think the scald threshold for skin and hot water is in the neighborhood of 120 degrees F. Now that would make a horrible cup of coffee...but a safe one....Should coffee be requlated out of existance because it is a hazardous material? If we prescribbe to Stella's case...by all means...coffee is downright dangerous and Stella should be looked at as a hero for alerting all us coffee drinkers to the dangers that coffee poses....BUt didn't we all already know that?

I don't think the lawyer nor Stella would have sued a Mom and Pop coffee store, it was the alure of Mc'D's that caused the suit....IT was a lottery lawsuit, and stella had the winning ticket....oppps i mean lawyer...

I think the only defense Mc'D's needed is.....coffee is hot...dah....

BobPE

 

[RDK]

An MSDS for a cup of coffee?

Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[IRstuff]

The facts of the case were that Starbucks and other coffee vendors that had procedures for controlling coffee temperatures limited their temperatures to less than 165°F, whil McD's required a mandatory 185°F on their urns. That 20° difference makes a huge difference between an instant 3rd degree burn and a simply annoying mishap. At 165°F, given the thermal mass of your clothing, it would be simply a hot and messy annoyance. You'd need to keep the liquid in contact with your skin for 10 seconds before a serious burn would develop.

At 185°F, you'd instantly get a 3rd degree burn.

The devil is in the details and McD's simply did not follow prudent procedures.

As for MSDS, while coffee might be considered a hazardous material in of itself, the MSDS structure does not account for temperature as a hazardous condition, as there are already other rules that cover that aspect, e.g., you don't need MSDS for stove.


TTFN

 

[BobPE]

the thermal mass of clothing would be overcome by the flow rate of the coffee, allowing below 165 degree F coffee to just as much damage, given the standard 12 oz cup. So this cannot be the problem....since I do not think volume of coffee was involved in the suit....so we are back to my question...MSDS coffee? RDK has a great idea...the lawyers are profitting off the deal,, why not us engineers....we should outright demand MSDS sheets in our state or country governments and only engineers should be allowed to issue the permits based on each independent supplier...they should be checked daily a by a PE to insure compliance...or maybe shift to shift, just to make sure no one exceeds the MSDS info....I think PE's should write an ANSI spec for the coffee makers and train operators....the cups and lids should be signed off by a PE and the delivery system to the customer also signed off to limit liability to the supplier and protect the consumer....

You can see where I am going...EVERYONE would think this is utterly stupid....Should we heed the verdict of Stella's case and step in to protect the public? NO....because Stella's case is a joke and is meant to be funny....but someone did get hurt....McDonalds did....

I am just sparring with you IRSTUFF....please dont take me the wrong way, its just nice to argue two points of view....because I think the outcome will serve us all in how we think....

BobPE

 

[IRstuff]

At 165°F, it takes 10 seconds to produce a 3rd degree burn, while at 185°F, it takes less than 1 second. Given a choice, would you allow me to arbitrarily pick a temperature of coffee to spill on you? ;-)

An unsafe product is still an unsafe product. At the end of the day, you as a PE must have performed your due diligence on any of your products to ensure that you took adequate step to ensure the safety of your products. Ford took a similar beating over the gas tanks and the uproar over the alleged cost-benefit analysis pointing to leaving the design alone and settling wrongful death suits.

In the aerospace industry, this is almost a mandatory requirement for any product that is to be fielded, both FMECAs and Safety assessments are performed and customer reviewed to ensure the safety of the end-user to a reasonable expectation.

Given that there was zero customer requirement for 185°F coffee and that 165°F is more than adequate and with some margin of safety, there was no reason for McD's to arbitrarily mandate such conditions.


TTFN

 

[BobPE]

so let me get this right....Stella is required to get her clothes off, in a car, in under ten seconds...then the lawsuit is frivilous???

You seemed to answer the argument in your last post...."reasonable expectation." Is it reasonable to assume coffee, by defination, is hot...hot is 120, hot is 165, hot is 185, hot is 200 degrees.....yes....I do not see thermomemeters in coffee cups, except for maybe those of lawyers interested in a bonus.....LOL I don't think Stella knew the exact temperature of her coffee, that was one of the problems in her case....She didn't have a thermomemeter handy...she most likely does now...I wish her well, protecting all of us out there in the world...one cup of coffee at a time...LOL

BobPE

 

[IRstuff]

Reasonable expectation can be quickly determined, particularly in the case of McD's. They recently introduced a line of expensive salads, which they most definitely used focus groups to determine the desireability of this new product.

Likewise, simply asking 2000 or so coffee drinkers whether they were willing to get scalded to get hot coffee would have gotten them answer.

I suspect that the jury saw the lack of due diligence on the part of McD's as a corporate arrogance akin to Ford's decision to allow people to die in rear-end collisions because it was cheaper, and punished McD's accordingly.

TTFN

 

[BobPE]

IRstuff....I seem to recall Chevy killing customers with their gas tanks in their full size pickups, well after Ford fixed their design flaws......this occured on models well into the 80's....I think gas tank design is a little different that coffee sice all of the process is our of the consumers control....Coffee is not spilled on customers by McD's but rather by the customer themselves....

I think thats a big difference....

BobPE

 

[IRstuff]

dunno, since when did Ford or Chevy start rear-ending their customers to blow up their fuel tanks?

The gas tank design, like the temperature of the dispensed coffee, is completely under the control of the supplier.

Rear-end collisions and spillage are obvious consequences of product usage. These events are hardly unforeseeable. Any safety engineer worth a darn would so indicate and would recommend steps to mitigate the issue.

If you had designed an overpass that could not sustain a collision from a 18-wheeler, who would get the blame?

TTFN

 

[melone]

What is the user is wearing shorts? Wouldn't they get burned instantly then?

 

[PSE]

McDs gets sued for providing coffee to a customer who subsequently burns themselves. Why not the manufacturer of the coffee maker? How many of us have accidently burned ourselves using the stove or making a pot of coffee. Do we go out and sue the manufacturer of either the equipment or the product? Eventually the customer has to be responsible for their own actions. I am quite sure that most of the users of these forums are familiar with the labelling on some food products such as remove contents from package before heating or eating. People can still mess that up! When I was in college we had a fire alarm at some awful hour because someone decided to bake a pizza without first removing it from the box.

My racing gear is labelled stating that the equipment essentially has no capability to protect me from harm and that I assume all risk. That I do each time I go out on the track. I also entail risk each time I drive on the street or handle a cup of coffee.

Lawyers make their living from conflict. Good ones solve conflicts, bad ones instigate them so that they can then "solve" them. Anyone remember the final scene in "The Devil's Advocate"? Al Pacino's character is asked (approximate) "...why law...?" Answer (not exact to script): "Because we are everywhere. Lawyers have the ultimate backstage pass."

"Never attribute to malice that which is adequately explained by stupidity" -- Murphy's Laws

 

[electricpete]

Thanks IRStuff - that is an interesting other side of the story that I hadn't heard before.

 

[IRstuff]

It's all very nice and convenient to blame lawyers, but the bottom line is that McD's had as good and certainly more lawyers.

At the end of the day, McD's was unable to convince a jury that the lady was at fault for being silly enough to buy too hot coffee from McD's.

Note the following:

> The woman never got the full award, since the judge reduced the punitive damages to 2.4 times actual.
> McD's admitted that the coffee was undrinkable as dispensed as it would burn one's mouth as well.
> McD's had lowered the coffee temperature to 158°F after
the trial started with zero detriment to sales.

see:

http://www.centerjd.org/free/mythbusters-free/MB_mcdonalds.htm

if you haven't hit ad nauseum yet

TTFN

 

[dik]

Rick:

Given that punative damages are a fact of law, who would you reward? the Government (likely an undeserving bunch)? a charity (which one(s) and how much, and how determined)? a social agency (same problem)? Coffee Anonamous? I think the victim is the first that comes to mind!

It also sets a business up as an example of what one should not do! Do you doubt that lawyers for other firms haven't learned from this? as well as the other firms lawyers?

 

[RDK]

I would treat punitive damages as a fine with the proceeds going to the Crown.

That way we all benefit in the form of lower taxes or more services while at the same time punishing the guilty. We all pay for the damages anyway in the form of higher costs or higher insurance costs.

The financial incentive for the lawyer to make more money by the awarding of more damages should be removed.

Engineers are not allowed to profit based on their opinions, professional opinions are and should be neutral of all financial incentives.

Why not put lawyers in the same position, eliminate contingency fees and large windfall profits for getting large punitive damages awarded?



Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[dik]

Rick... it would be fine if the matter were criminal... but, you have to realize that this is a civil matter. The crown or prez(maybe) did not lay the charges... they are out of the picture. The defendant cannot be 'fined', but he may be subject to court costs!

I was quite surprised (Simpson) that you could be aquitted by a criminal court and 'roped' for the same offence as a civil matter...

There is an advantage to contingency fees... it allows people that could not normally afford a lawyer to have one (and a good one at that). There is likely a 'loose' correlation between quality of lawyer and success. By not having contingency fees, some are not getting justice.

 

[RDK]

Dik

Can you explain why the plaintive should profit from the case?

That’s exactly what punitive damages are, windfall profits to the plaintive with one third to the lawyers.

If the intent were to punish the defendant than the punishment would remain the same, it would just remove the incentive for frivolous lawsuits.

And yes I believe that the Stella case was frivolous. Everyone knows coffee is hot. Everyone knows that if you spill hot liquids on your groin it will hurt. Everyone knows that opening a coffee cup held between your knees will increase the chances of it spilling. What happened to common sense and responsibility for one’s own actions? Her responsibility for the injury was more than the 20% assessed. IMHO it is more like 99.9%, she initiated the actions that caused the injury.

To be awarded $5 million just because the defendants were less sympathetic than the poor old grandmother with coffee burns was a miscarriage of justice. To be awarded $5million because the jury thinks you can afford it is a miscarriage of justice, what would have happened if she had bought the coffee at some mom and pop corner store? (I know that the award was reduced on appeal and the final disposition of the case was negotiated and is a sealed matter, the jury DID award $5million)

How about the lawsuits now being brought by obese people against snack food makers. Should the snack food makers be held responsible because people choose to eat their product in large quantities and fail to get sufficient exercise? I predict sooner or later a jury will award some overweight person many millions on this issue.

If the money goes to the Crown then no individual profits from the action. If punitive damages are punishment they are no different than a fine and should be treated as such.

As an engineer we should take a position based on what we professionally believe to be the correct one with no regard for who is paying the bills and no financial interest in the outcome. (Yes I know that is the ideal and not always the reality, but at least we always pay lip service to this ideal.) Lawyers on the other hand will take the position that pays the best.

There IS something to be said for an advocacy system in law. It’s just when the dollar amounts get so large that they distort the basic concepts of justice and fairness that should be the foundation of the system.

The Simpson case was the difference between criminal and civil courts. OJ was found not guilty because one jury found that there was reasonable doubt that he committed the crime. A second jury found that on the balance of probabilities he was guilty of causing the wrongful death of two people. I won’t comment on the differences in the racial and social economic make-ups of the two juries other than to say that I believe that it had something to do with the results.

The differences are in the standards of proof are reasonable. In a criminal court one can be denied one’s liberty and freedom (and even life in those places that still allow the state to kill criminals.) In a civil court all that is at stake is money.

As to contingency fees, I agree that they may allow justice for those who cannot afford it but they should be capped at actual costs (normal hourly rates plus disbursements plus a risk factor) instead of being unlimited. Lawyers would then only invest in cases where there was some real possibility of being successful i.e. the case had some merit. Hourly rates can be demonstrated by what paying clients actually pay for that lawyer’s services, much like some government agencies do for some engineering contracts.


Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com