Week 1 Activity Assignment

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Feb 20, 2024

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Corporate Greed, Consumer Harm, & The Most Expensive Cup of Coffee? Jesus Emmanuel Jehovah, Student #32643727 Liberty University GOVT280: Undergraduate Torts, Autumn 2023 Professor Jennifer Riedthaler-Williams Due Date: August 28, 2023; LUODAS Extension

2 I. Introduction In 1992, then 79-year-old grandmother Ms. Stella Lieback had her grandson drive her through the McDonalds’ drive-through for a cup of coffee, but little did she know such cup of coffee would permanently change her life. Upon receiving the coffee, she put it in her lap between her thighs. At some point thereafter while still in the vehicle, to add cream and sugar to the coffee she tried to remove the lid (a lid designed and intended to keep the contents from spilling out) and in doing so she spilled the entire cup on her lap. Her sweatpants absorbed and kept the hot liquid against her skin, resulting in full thickness (third and/or fourth degree) burns to her thighs, buttocks, groin, and genital area, as well as an eight-day hospitalization, skin grafts, two years of follow up care, and significant medical fees to treat such. When Ms. Lieback brought suit against McDonalds, she was willing to settle the case for $20,000, but McDonalds refused to settle and decided to fight her claims. Upon trial, she was awarded $160,000 dollars in compensatory damages and $2.7 million dollars in punitive damages, but in post-trial proceedings the punitive damages were found to be excessive and reduced to $480,000 dollars. Was this judgment against McDonalds appropriate? For reasons herein related to public policy considerations involving consumer safety, reasonableness and contributory negligence standards, tort law purposes, and other factors, such judgment against McDonalds was appropriate, particularly given that the coffee given to her for immediate consumption was so hot it would instantly melt the skin on her lips and tissues in her mouth and upper gastrointestinal track if consumed, and also given that Ms. Lieback was contributorily negligent and assumed dangerous risks of spilling the coffee by removing the lid while traveling in a vehicle.

3 II. Analysis and Discussion States have legitimate public policy interests (economic, employment, tax revenue, and other interests) related to businesses being successful and employing citizens of the state, and they also have public policy interests in consumer safety. When the underlying interests of corporations and consumers are in competition with one another, which is what occurred here, consumer safety generally prevails and tort law has developed to reflect such. In this case, it was found that McDonalds sold cheap coffee in order to maximize corporate profits. Because its cheap coffee did not taste good, McDonalds researched what could be done to make it taste better to increase sales and profits, and its research allegedly found that when such coffee was extremely hot consumers thought it tasted better than when it was at lower temperatures (Urich, 2009). McDonalds thus sold its cheap coffee extremely hot in order to mask its unsavory flavor and to try to increase sales and profits. In doing so, McDonalds disregarded obvious risks to consumers stemming from the extremely high temperatures of its coffee. The McDonalds coffee at issue was dangerously hot at 180-190 degrees Fahrenheit (180- 190 ). Such was approximately 70 degrees hotter than what most consumers expect and want ℉ their coffee to be (Urich, 2009). Liquids (including coffee) can cause third degree burns in 15 seconds at 133 , in 5 seconds at 140 , in 2 seconds at 149 , and in 1 second at 156 ℉ ℉ ℉ ℉ (Safety: High Temperature Safety, n.d., Hazard Overview). 1 Liquids at the much higher temperatures of 180-190 —such as the McDonalds coffee here—instantly melt human tissue ℉ on contact (Urich, 2009). This is what Ms. Lieback tragically experienced, and what McDonalds knew or reasonably should have known could and would have occurred upon a consumer either drinking such extremely hot coffee or spilling it on themselves or others. By continuing to sell its 1 “Third-degree burns involve both layers of the skin and may also damage the underlying bones, muscles, and tendons. The burn site appears pale, charred, or leathery. There is generally no pain in the area because the nerve endings are destroyed” (Safety: High Temperature Safety, n.d., Burn Severity). Thus, third-degree burns are serious.

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4 super-hot coffee, McDonalds disregarded these risks and posed an unreasonable risk of harm to consumers (including Ms. Lieback) and did so in an effort to maximize corporate profits associated with selling cheap, unsavory coffee. Such constituted the tort of negligence. “Generally, negligence is conduct involving unreasonable risk of harm.” Weikert v. Delta Air Lines , 2021 U.S. Dist. LEXIS 245384, *16 (E.D. Mich. October 25, 2021). Tort law exists to redress wrongdoing and to provide remedies to people who experience and suffer wrongs committed by others. “The common thread interweaving most torts is the notion that socially unreasonable conduct should be penalized and those who are its victims should be compensated” (Edwards, 2016, §1-3). In these regards, consumers generally do not purchase a cup of coffee that will instantly melt their skin, lips, or mouth on contact, but one they can immediately begin safely drinking without harm. McDonalds selling Ms. Lieback a cup of coffee for immediate consumption that would literally melt her skin and tissues if consumed was entirely unreasonable, egregiously wrong, and “socially unreasonable conduct [that] should be penalized” (Edwards, 2016, §1-3). While consumers demand hot coffee, they do not want it so hot that it melts their skin, mouth, and upper gastrointestinal track upon drinking it, and McDonalds should have reasonably known this and known that coffee at such hot temperature was undrinkable and unsafe for immediate consumption, and that drinking or spilling such could and would cause serious burns, as Ms. Lieback experienced. Moreover, “even those manufacturers and sellers who act reasonably are held liable to plaintiffs injured by their products” (Edwards, 2016, §1-3). Thus, whether McDonalds acted unreasonably (as it obviously did) or reasonably (as some might contend), liability could still be imposed and was thus justly imposed in this case.

5 Although McDonalds selling such extremely hot coffee was unreasonable, Ms. Lieback also acted unreasonably and negligently contributed to her own harm. When a party’s conduct contributes to cause harm to themselves, in tort law such is known as contributory negligence. Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm. Restatement (Second) of Torts , §463 (Am. Law Inst. 1965). Here, Ms. Lieback negligently contributed to her own harm by placing a hot cup of coffee between her thighs while in a presumably moving vehicle, all while knowing road surfaces are not perfectly even or smooth and that stops, accelerations, turns, bumps, and driving errors can and do occur, and then in this context decided to remove the coffee cup lid (a lid designed and intended to keep the contents from spilling) and then spilled the entire cup of coffee on and serious burned herself. It was unreasonable for her to remove the lid to try to add sugar and cream to the coffee cup while in a presumably moving vehicle. While many people might do this, they also assume the risk of spilling their coffee by doing so. When Ms. Lieback did so, she assumed the dangerous risk that she could spill the coffee on and burn herself, and she was plainly negligent in doing so and thereby negligently contributed to her own harm. 2 Because New Mexico has the comparative fault rule (where all parties contributing to cause an injury are severally and proportionally liable for such), the order entered in this case expressly found that Ms. Lieback was 20% at fault (contributorily negligent) and impliedly found that McDonalds was 80% at fault. See Liebeck v. McDonald's Restaurants , 1994 N.M. 2 In most states, engaging in conduct while knowing of risks of harm from such conduct is known as the assumption of risk doctrine and defense, but in New Mexico (where this incident occurred) such doctrine and defense were merged into the contributory negligence doctrine and defense. See Williamson v. Smith , 83 N.M. 336, 340-342 (N.M. December 13, 1971).

6 Dist. LEXIS 2, *1-2 (N.M. 1994). Such was not only appropriate under New Mexico law, but also appropriate under God’s law. The Bible teaches that “[t]he person who sins will die” and “a son will not be punished for his father’s sins, and a father will not be punished for his son’s sins” (Berean Study Bible, 2016/2020, Ezekiel 18:20). Such verse indicates people should only be punished for their own wrongdoing, not for the wrongdoing of others. Thus, punishing McDonalds for Ms. Lieback’s contributory negligence would have contravened God’s law, but such did not occur because New Mexico courts go by the comparative fault rule that allocates punishment based on the amount of fault each party is deemed proportionally responsible for. Some might rightfully be concerned that imposing liability on McDonalds regarding this incident was a slippery slope. A “slippery slope” exists when courts allow claims in one instance and as a result are in danger of allowing all claims in similar circumstances that require comparable treatment (Edwards, 2015, §1-6). “[W]ith any slippery slope argument, its power to persuade is a function of the plausibility of its predictions.” Turlock Irrigation Dist. v. FERC , 36 F.4th 1179, 1184 (D.C. Cir. June 17, 2022). Appreciation for such slippery slope concerns can be derived from a few illustrative examples of what this McDonalds case could allow for: a chef could sue a knife manufacturer for making a knife too sharp when the chef, while wearing sandals and working at a beach restaurant, drops the knife and causes a puncture wound or serious cut to his or her foot that necessitates multiple surgeries; someone who used too much hot sauce could sue a hot sauce manufacturer for its hot sauce being too hot and causing significant watery eyes, runny nose, difficulty breathing, emotional distress, and pain lasting hours and giving rise to an emergency room visit; a pillow manufacturer being sued for its pillow being too soft, resulting in neck cramps and pain when a consumer slept on it wrong; and

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7 innumerable other situations involving millions of products. In these examples and others, under the ruling and theory in this McDonalds case, consumers could impose product liability on producers by mishandling, spilling, dropping, or misusing such products and injuring themselves, as occurred here when Ms. Lieback negligently attempted to remove the coffee cup lid and spilled the coffee, thereby burning herself. Courts are aware of these concerns and resort to relying on the contributory negligence doctrine and other doctrines to reduce awards of damages when plaintiffs negligently contribute to cause harm to themselves (as occurred here with Ms. Lieback). III. Conclusion McDonalds is a very successful international fast-food restaurant that has been in business for over 75 years. When such a large corporation is engaged in day-to-day transactions selling beverages and food to millions of consumers, it has a duty to take reasonable measures to ensure its products are safe for immediate consumption by consumers. Here, that did not occur and Ms. Lieback suffered serious injury as a result. While Ms. Lieback was contributorily negligent and contributed to cause the injuries she experienced, the courts justly awarded damages to her based primarily on the tortious conduct McDonalds engaged in. The court’s judgment was consistent with New Mexico comparative fault rules and contributory negligence doctrines, as well as consistent with biblical commands of God, and the imposition of liability on tortious corporations that harm consumers was also consistent with New Mexico’s public policy interest in consumer safety.

8 References Restatement (Second) of the Law, Torts. (1965). American Law Institute. Edwards, J. S. (2016). Tort Law (6 th Edition). Cengage Learning: Boston, MA. Safety: High-Temperature Safety. (n.d.). University of Wisconsin. Retrieved August 28, 2023, from https://safety.ep.wisc.edu/hazards/high-temperature-safety . The Holy Bible: Berean Study Bible . (2020). Biblehub.com. https://biblehub.com (Original work published 2016). Turlock Irrigation Dist. v. FERC , 36 F.4th 1179 (D.C. Cir. 2022). Urich, A. [DrAndrewUrich]. (2009, November 20). McDonalds Hot Coffee [Video]. YouTube. https://www.youtube.com/watch?v=uukSFkZGlks&t=3s . Weikert v. Delta Air Lines , 2021 U.S. Dist. LEXIS 245384 (E.D. Mich. 2021). Williamson v. Smith , 83 N.M. 336 (N.M. 1971). New Mexico Supreme Court.

Week 1 Activity Assignment

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