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Frivolous

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

I was very much offended by a web site I visited listing what it called the “Top Ten Frivolous Lawsuits.”1 My objection to that listing is that some of the plaintiffs listed had won, and almost by definition, a case that wins is not frivolous. Frivolous is not the same thing as silly, or unpopular. The Wikipedia defines “frivolous litigation” as:

…the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit. While colloquially, a person may term a lawsuit to be frivolous if he or she personally finds a claim to be absurd, in legal usage “frivolous litigation” consists of a claim or defense that is presented where the party (or the party’s legal counsel) had reason to know that the claim or defense was manifestly insufficient or futile. The fact that a claim is lost does not imply that it was frivolous.

Dismissal of a lawsuit is one thing that suggests that the suit is frivolous. In the case of recent attention on this blog, Judy v. Obama, both the District Court and the Court of Appeals described the suit as “frivolous.” Judy v. Obama was dismissed, as were the vast majority of birther eligibility lawsuits, for failure to state a claim [that the court can redress], because as a matter of law, the case could not be prosecuted.

In the Tisdale case, for example, the Plaintiff based his lawsuit on the contention that Obama was ineligible because his father was a non-citizen. The court dismissed the case because the legal theory underpinning the suit (that non-citizen fathers disqualify presidents) is false; thereby preventing the court from granting any relief. The court did not call the case “frivolous” but I would.

Phil Berg lost his eligibility lawsuits against Obama because he lacked standing. His claimed injury was not individual. Berg was a lawyer and should have known better. Judge Sloviter, writing for the Third Circuit Court of Appeals in the case of Berg v. Obama, wrote: “Berg’s final claim that the District Court violated his due process rights by dismissing his case is equally frivolous.”

Most Lawsuits Aren’t Frivolous, But Some Calls AreThe Federal Rules of Civil Procedure Rule 11 require that an attorney or party represent that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” While Rule 11 sanctions can be imposed on an attorney or any party for frivolous litigation or a frivolous argument, it is the attorney who is presumed to know better, while an unrepresented party could plead ignorance. The court has discretion to take into consideration the special circumstances of pro se litigants.

Phil Berg is generally believed to be behind the Hollister v. Soetoro lawsuit, although the attorney of record was John Hemenway. District Judge James Robertson refers to that belief when he said:

“Others similarly situated” -– the people who put Mr. Hemenway up to filing this foolish suit – are unlikely to be deterred, except by a penalty that would be unreasonable to impose on Mr. Hemenway alone.

He reprimanded Hemenway for “his part in the preparation, filing, and prosecution of a legally frivolous suit in this court.” The Hollister case invoked a novel approach, but Judge Robertson said this didn’t create immunity from frivolousness:

Moreover, one might add, no court has held that a claim made for the first time cannot on that account be found frivolous, or that “creativity” confers immunity from Rule 11 sanctions.

Judges apparently do not enjoy frivolous litigation, as evidenced by the comments of Federal Judge Ellen L. Hollander in the case of Taitz v. Colvin:

Plaintiff [Orly Taitz] can rest assured that if any reasonable grounds existed for me to recuse myself from this case, I would have done so, if for no other reason than to avoid spending precious time on such frivolous filings. But, my responsibilities require me to handle dutifully the cases assigned to me.

The Supreme Court even has a rule (39.8) that pleadings in forma pauperis need not be allowed when they are frivolous.

Sanctions can also apply to unrepresented parties, as in the case of Chris Strunk who was restrained from filing lawsuits in New York without permission:

The Court is concerned that plaintiff STRUNK continues to use the scarce resources of the New York State Unified Court System to fruitlessly pursue the same claims. He is no stranger to litigation in Supreme Court, Kings County, Civil Term. Further, plaintiff STRUNK has had several bites of the same apple in U.S. District Court, which resulted in findings of his engagement in frivolous conduct with, as stated by Judge Ross, complaints that “have contained allegations that have risen to the irrational.” The Court should not have to expend resources on the next action by Mr. STRUNK that will be a new variation on the same theme of defendants’ alleged misdeeds and misconduct. The continued use of the New York State Unified Court System for the personal pursuit by plaintiff STRUNK of irrational complaints against defendants must cease.

“Frivolous” is a word I use less frequently than I once did on this blog, but that is not an indication that I don’t think that most all birther litigation is frivolous in the legal sense, and most all of their actions are frivolous in the popular sense.


1I most definitely do not consider the Liebeck case frivolous.

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70 Responses to Frivolous

  1. avatar
    bob June 23, 2015 at 10:28 am #

    Speaking of frivolity, “frivolous” appears around a dozen times in Kerchner v. Obama because Berg had foreclosed the standing issue. The Third Circuit even issued an order to show cause as to why costs should not be imposed on Apuzzo for filing a frivolous suit. Although the order was eventually discharged and no costs were imposed, the finding of frivolity remains in the court’s decision.

  2. avatar
    ASK Esq June 23, 2015 at 3:20 pm #

    Just to comment on the web site that offended you in the first place. Any listing of frivolous lawsuits that starts off with Liebeck v. McDonald’s has already lost credibility. We learned the facts of Liebeck literally the first day in Torts. What most of the public doesn’t know is that McDonald’s had over 700 prior complaints about the temperature of their coffee, which they served at around 180 degrees (about 50 dgerees hotter than your home brew), which led to similar incidents. So not only did they know of the problem, a reasonable consumer would not expect that they could suffer third-degree burns due to spilled coffee. So this was not just a foolish old woman who blamed someone else for something she was responsible for.

    Unlike the birther suits, none of which has a scrap of merit, Liebeck was not frivolous in any way.

  3. avatar
    Dr. Conspiracy June 23, 2015 at 4:45 pm #

    McDonald’s justification for the super hot coffee was that their consumers wanted to consume at their destination, not while driving–something that it was learned McDonald’s own research had proven otherwise.

    Now McDonald’s adds the cream an sugar for you at the drive through, so you don’t have to open the lid, what did in Ms. Liebeck.

    ASK Esq: Unlike the birther suits, none of which has a scrap of merit, Liebeck was not frivolous in any way.

  4. avatar
    john June 23, 2015 at 5:44 pm #

    I always laughed at the McDonald’s case. I was reading up on it. How exactly did Ms. Liebeck spill the coffee. She said she it put between her legs and tried to open the lid, next the coffee was all on here. What I am missing in between?

  5. avatar
    john June 23, 2015 at 5:47 pm #

    ASK Esq:
    Just to comment on the web site that offended you in the first place. Any listing of frivolous lawsuits that starts off with Liebeck v. McDonald’s has already lost credibility. We learned the facts of Liebeck literally the first day in Torts. What most of the public doesn’t know is that McDonald’s had over 700 prior complaints about the temperature of their coffee, which they served at around 180 degrees (about 50 dgerees hotter than your home brew), which led to similar incidents. So not only did they know of the problem, a reasonable consumer would not expect that they could suffer third-degree burns due to spilled coffee. So this was not just a foolish old woman who blamed someone else for something she was responsible for.

    Unlike the birther suits, none of which has a scrap of merit, Liebeck was not frivolous in any way.

    They say, ms. Liebeck’s cotton clothes absorbed the hot coffee which caused sustained burning. Why Ms. Liebeck didn’t react instantly was a mystery but she was in her 80’s perhaps she was a little slow.

  6. avatar
    john June 23, 2015 at 5:50 pm #

    ASK Esq:
    Just to comment on the web site that offended you in the first place. Any listing of frivolous lawsuits that starts off with Liebeck v. McDonald’s has already lost credibility. We learned the facts of Liebeck literally the first day in Torts. What most of the public doesn’t know is that McDonald’s had over 700 prior complaints about the temperature of their coffee, which they served at around 180 degrees (about 50 dgerees hotter than your home brew), which led to similar incidents. So not only did they know of the problem, a reasonable consumer would not expect that they could suffer third-degree burns due to spilled coffee. So this was not just a foolish old woman who blamed someone else for something she was responsible for.

    Unlike the birther suits, none of which has a scrap of merit, Liebeck was not frivolous in any way.

    700 idiots who had no commons sense. Didn’t these idiots know that coffee is a hot liquid, it can burn you. Duh!!

  7. avatar
    john June 23, 2015 at 6:03 pm #

    john: 700 idiots who had no commons sense.Didn’t these idiots know that coffee is a hot liquid, it can burn you. Duh!!

    It’s a little like consuming something light cheese bites or may be fondu steak or may be suishi pieces, failing the chew your bits and you choke to death. You then sue the cheese or steak company claiming the steak bits were too big and they should have been smaller. Of course, people always know that when you eat bits like steak, you have to be careful to chew your food throughly so you don’t choke.

  8. avatar
    Pete June 23, 2015 at 6:58 pm #

    john: 700 idiots who had no commons sense. Didn’t these idiots know that coffee is a hot liquid, it can burn you. Duh!!

    A birther talking about “common sense” and “idiots?”

    Bizarre.

    As a consumer, I would expect that McDonald’s would serve their coffee at a reasonably safe temperature. I might expect a possibility of mild burns if you spilled it on yourself. I would not expect 3rd-degree burns.

  9. avatar
    J.D. Sue June 23, 2015 at 7:12 pm #

    john: I always laughed at the McDonald’s case.

    —-
    Of course you did. It was presented to you in a particular way to make you disregard or minimize the facts, and to make you side with the insurance company and promote “tort reform”. Good work, John, you are a reliable tool.

  10. avatar
    john June 23, 2015 at 7:42 pm #

    Here is my take on the list:

    Stella Liebeck – Frivolous – She should have know better and acted more quickly.

    Gordon Falker and Gregory Roach – Frivolous – Should have known better. Read the warning labels idiots.

    Karen Norman – Not frivolous. Defective seatbelt. Even if Karen was stone drunk, she should have been all to open her seat belt. It doesn’t take much especially in a panic situation.

    Stephen Joseph – Frivolous – Standing problem there.

    Larry Harris – Frivolous – Since Harris was breaking the law, he assumes all risk and peril.

    Richard Harris – Maybe not Frivolous. If Bush was advertising contrary to Harris’s beliefs, might have a case.

    Kellogg sued Exxon – Frivolous

    Richard Schick – Not Frivolous – Raises the question do 2 wrongs make a right?

    Robert Lee Brock – Frivolous

    Paul Shimkonis – Not Frivolous if it can be proved the breasts caused the injury.

  11. avatar
    Georgetown JD June 23, 2015 at 7:53 pm #

    john:
    I always laughed at the McDonald’s case.I was reading up on it.How exactly did Ms. Liebeck spill the coffee.She said she it put between her legs and tried to open the lid, next the coffee was all on here.What I am missing in between?

    The part where it was foreseeable to McDonald’s that extremely hot coffee, whatever act caused it to spill, would cause third degree burns. It’s a “but-for” analysis: But for McDonald’s business decision to heat coffee to 180 degrees knowing that hundreds of customers had complained of burns from spilt coffee, Lieback would not have been injured. McDonald’s set the causal events in motion, thus it was culpable for all foreseeable events thereafter.

  12. avatar
    Georgetown JD June 23, 2015 at 8:00 pm #

    john:
    Here is my take on the list:

    * * *

    You must be a retired claims adjuster for an insurance corporation.

  13. avatar
    Janny June 23, 2015 at 8:58 pm #

    It was my understanding that Mrs. Liebeck only wanted McDonald’s to pay for her medical ($2,000). They refused — hence the lawsuit. Even after the court ruled in her favor, McDonald’s still did not reduce the temperature of their coffee — while other fast food restaurants have never served their coffee at that high temperature. Nice corporate decision there.

  14. avatar
    john June 23, 2015 at 9:10 pm #

    Janny:
    It was my understanding that Mrs. Liebeck only wanted McDonald’s to pay for her medical ($2,000).They refused — hence the lawsuit.Even after the court ruled in her favor, McDonald’s still did not reduce the temperature of their coffee — while other fast food restaurants have never served their coffee at that high temperature.Nice corporate decision there.

    I guess they should have settled. It’s my understanding that Mrs. Liebeck did not prepare her coffee instantly and waited a period of time. One can argue that at the instant Mrs. Leibeck prepared her coffee, the coffee was not 180 degrees because the heat had started to vent off. One would have to study heat disappations rates of coffee and determine exactly what tempurature the coffee was the instant it hit Mrs. Leibeck’s lap. Because of Leibeck’s wardrobe, age, reaction time and skin condition, coffee at much lower temprature could have done as much damage.

  15. avatar
    Dr. Conspiracy June 23, 2015 at 9:16 pm #

    Right, although it turned out that her medical bills were much larger. She had three surgeries and I forget how many weeks she was in the hospital. She was permanently scarred.

    Janny: It was my understanding that Mrs. Liebeck only wanted McDonald’s to pay for her medical ($2,000).

  16. avatar
    Dr. Conspiracy June 23, 2015 at 9:19 pm #

    Did you get that from Mara Zebest?

    john: Because of Leibeck’s wardrobe, age, reaction time and skin condition, coffee at much lower temprature (sic) could have done as much damage.

  17. avatar
    Keith June 23, 2015 at 9:38 pm #

    Dr. Conspiracy: Now McDonald’s adds the cream an sugar for you at the drive through, so you don’t have to open the lid, what did in Ms. Liebeck.

    So now you just get to scald your mouth, tounge, throat, and stomach with third degree burns while driving your car?

  18. avatar
    Rickey June 23, 2015 at 9:39 pm #

    john: I guess they should have settled.It’s my understanding that Mrs. Liebeck did not prepare her coffee instantly and waited a period of time.One can argue that at the instant Mrs. Leibeck prepared her coffee, the coffee was not 180 degrees because the heat had started to vent off.One would have to study heat disappations rates of coffee and determine exactly what tempurature the coffee was the instant it hit Mrs. Leibeck’s lap.Because of Leibeck’s wardrobe, age, reaction time and skin condition, coffee at much lower temprature could have done as much damage.

    The temperature of the coffee was between 180 and 190 degrees. I can assure you that McDonald’s would have vigorously disputed that if it had evidence to the contrary. At that temperature, it only takes 2-7 seconds of exposure to skin in order to cause third-degree burns.

    As for Liebeck’s age, clothing, etc. it is a legal maxim that defendants have to take plaintiffs as they find them. For example, if Liebeck had been run down by a car while she was crossing the street, she could not have been found at fault because she wasn’t nimble enough to avoid the car. Likewise, she was not negligent because she elected to wear cotton pants. Nor could she have been found negligent because her reaction time may have been slow.

    In the McDonald’s case, Liebeck was found to be 20% responsible.

    The dishonest story which Doc linked to also fails to note that the judge reduced the punitive damages award to $480,000, and McDonald’s eventually settled the entire case for less than $600,000.

  19. avatar
    Rickey June 23, 2015 at 9:42 pm #

    Georgetown JD: You must be a retired claims adjuster for an insurance corporation.

    That’s an insult to retired claims adjusters!

  20. avatar
    john June 23, 2015 at 9:42 pm #

    Dr. Conspiracy:
    Did you get that from Mara Zebest?

    No but you have take into the account all the factors. Did 180 Degree Coffee burn Ms. Leibeck? You first have consider the heat dissapation rate of coffee in a coffee cup. Then you would have factor in how long Leibeck waited to drink her coffee. Next, you have consider the type of clothing that could absorb the heat of the coffee. Further, you have to factor in how long Ms. Leibeck waited before reacting. Then you have take into her account her age and skin condition relative to the tempurature of the coffee. After taking into account all of these factors, you could determine the exact circumstances that were required to produce the burn Ms. Leibeck received from the coffee.

  21. avatar
    john June 23, 2015 at 9:54 pm #

    It is really silly lawsuit to consider. If I go to restraunt chain that serves Shrimp Pasta Alfrado, some of the shrimp might be big and some of shrimp might be small and other restruant chains may offer jumbo size shrimp which is ever bigger. Now if I eat and choke to death by not chewing the shrimp properly, what size shrimp would be reasonable to consider. I guess if a bunch of people choke on the jumbo size shrimp I guess you can make the argument that jumbo size shrimp is too big.

  22. avatar
    Arthur B. June 23, 2015 at 10:01 pm #

    Now imagine that level of erudition and perspicacity being applied to questions of presidential eligibility.

  23. avatar
    Pete June 23, 2015 at 10:18 pm #

    I’m shocked. It looks as if john actually has a brain.

    So why can’t he use it on birther issues?

  24. avatar
    john June 23, 2015 at 10:26 pm #

    john:
    It is really silly lawsuit to consider.If I go to restraunt chain that serves Shrimp Pasta Alfrado, some of the shrimp might be big and some of shrimp might be small and other restruant chains may offer jumbo size shrimp which is ever bigger.Now if I eat and choke to death by not chewing the shrimp properly, what size shrimp would be reasonable to consider.I guess if a bunch of people choke on the jumbo size shrimp I guess you can make the argument that jumbo size shrimp is too big.

    I guess this is the reasoning you take with the coffee considering its temprature. Of course, you have to remember, that anyone who drinks coffee should inherently know that is it is hot and it can burn you. Even if there are no warning labels, hot coffee gives off heat which is a warning to the drinker to use caution. The fact that the coffee is too hot, one has to consider a burn is a burn and no one was to get burned with either a 1st degree, 2nd, degree or 3rd degree burn. Consequently, caution should always be used when preparing hot coffee irregardless of his temprature.

  25. avatar
    Arthur June 23, 2015 at 11:06 pm #

    john: Consequently, caution should always be used when preparing hot coffee irregardless of his temprature.

    Thank you, john. I’m passing this axiom on to my colleagues. Coffee safety is everyone’s business.

  26. avatar
    Dave June 23, 2015 at 11:07 pm #

    I do think the McDonalds decision was a bad one. The plaintiffs convinced the jury that McDonalds served coffee at a much higher temperature than was typical. The evidence was they sent out some paralegals with a thermometer to order coffee in nearby restaurants, and measure the temperature.

    I may be missing something important, but I got this information from a website set up by some trial lawyer association to convince people that this case wasn’t appalling. Perhaps there was some more compelling evidence they didn’t bother to mention.

  27. avatar
    W. Kevin Vicklund June 23, 2015 at 11:42 pm #

    john: No but you have take into the account all the factors.Did 180 Degree Coffee burn Ms.Leibeck?You first have consider the heat dissapation rate of coffee in a coffee cup.Then you would have factor in how long Leibeck waited to drink her coffee.Next, you have consider the type of clothing that could absorb the heat of the coffee.Further, you have to factor in how long Ms. Leibeck waited before reacting.Then you have take into her account her age and skin condition relative to the tempurature of the coffee.After taking into account all of these factors, you could determine the exact circumstances that were required to produce the burn Ms. Leibeck received from the coffee.

    Based on a number of empirical experiments, including several I myself have conducted with similar liquids (tea, hot chocolate), the temperature dissipation rate at 180 degrees is approximately 1 degree per every 15-20 seconds with an open container, and even slower with a lid. So based on the testimony, and allowing for the time from when it was poured to when it was passed to the driver, the temperature of the coffee when it was spilled had dropped by 1-3 degrees.

  28. avatar
    bob June 24, 2015 at 12:38 am #

    I’m sooooo glad john, the obvious not-a-lawyer, is here to Monday-morning quarterback a case that took place over 15 years ago. In which he did not hear all (or really, any) of the actual evidence presented to the jury.

    Because him being so very wrong about President Obama’s eligibility was getting boring. Kudos to him for exploring new horizons of wrongedness!

  29. avatar
    John Reilly June 24, 2015 at 2:07 am #

    I may be late to the party, but to me the fundamental problem with John’s view of the coffee case is that under our Constitution, Mrs. Liebeck had an absolute right, once her damages exceeded $20, to have a jury decide who was at fault. And the jury in that case decided that Ms. Liebeck bore some of the fault, although MacDonald’s was more responsible for her damages. Now you might think, not having seen the evidence, that the relative assignments of blame were wrong, or you might even think that if you were on the jury you would hold Mrs. Liebeck fully responsible. But in any event a jury, guaranteed by the Constitution, made that decision. And those folks who took time out of their schedule to hear and decide this dispute ought not be chastised by folks who were not there and did not hear the evidence. (We won’t even address the fact that John pontificated on the case without researching the actual facts because we’ve gotten used to John’s shoot first, shoot again, and shoot later approach to reasoned inquiry.)

    This is no different than the Birther position on Pres. Obama. The Constitution assigns responsibility for determining eligibility to the Electoral College and to Congress. Both have selected Pres. Obama. Twice. You might disagree (I voted for McCain and Romney) but that is how we assign responsibility under our Constitution to pick the best person and to make sure he meets the qualifications. And every Court, more than 200, which have had to consider the position of folks like John, Orly, Scott, Cody and Sven, have rejected their ideas. Every single time.

    I want to know where Cody, Sven, Scott, John and Orly etc are on the Confederate Flag issue. There’s an issue in the news this past week. There’s a symbol of actual treason against our Constitution. As someone whose ancestors fought on the Union (winning) side, and some of whose distant relatives died in that war having so recently escaped famine and the British, I want to know why our friends like Orly, Sven, Cody, John and Scott aren’t out on the front lines challenging people who glorify the memory of traitors. Real traitors. Actual people who took up arms against the Constitution, and their political descendants who want to glorify their treason.

  30. avatar
    J.D. Sue June 24, 2015 at 2:27 am #

    john: Here is my take on the list:

    —-
    Amazing how you can render your verdicts when you have heard none of the evidence and you are clueless about the law that applies.

  31. avatar
    J.D. Sue June 24, 2015 at 2:42 am #

    john: Here is my take on the list:


    BTW, I find it amusing that in your opinion, McDonald should not be liable for the injuries caused by a dangerously hot cup of coffee, but that a lap dancer should be liable for an injury caused by a dangerous breast…

  32. avatar
    The Magic M (not logged in) June 24, 2015 at 4:06 am #

    john: Larry Harris – Frivolous – Since Harris was breaking the law, he assumes all risk and peril.

    Fortunately the law does not permit people to take the law into their own hands by setting up “death traps”.
    There may be circumstances where the owner would’ve been allowed to shoot the burglar, but you can’t just delegate that to pre-prepared trap.
    (Not to mention that the trap would’ve killed someone in an excusable emergency – sorry, don’t know the proper legal term – as well, like someone heavily wounded looking for help/a phone etc.)

  33. avatar
    Pastor Charmley June 24, 2015 at 6:47 am #

    Concerning the Larry Harris case, I believe that there are regulations concerning what is and is not permissible as a deterrent against thieves. Signs must be posted to make it quite clear that the trap is there, and reasonable precautions against innocent entry, such as high walls and fences must be adopted.

  34. avatar
    Dr. Conspiracy June 24, 2015 at 6:53 am #

    That argument has strong resonance with me, and indeed is very much like what I have said myself. I feel a strong presumption in favor of the correctness of jury verdicts and judicial rulings. Even so, they get it wrong sometimes (see for example: http://www.cnn.com/2013/12/04/justice/exonerated-prisoner-update-michael-morton/)

    John Reilly: And those folks who took time out of their schedule to hear and decide this dispute ought not be chastised by folks who were not there and did not hear the evidence.

  35. avatar
    Dr. Conspiracy June 24, 2015 at 7:10 am #

    I seem to recall that finding, but I don’t see how it is relevant. The fact that other restaurants served dangerously hot coffee shouldn’t make McDonald’s any less liable.

    Dave: The plaintiffs convinced the jury that McDonalds served coffee at a much higher temperature than was typical. The evidence was they sent out some paralegals with a thermometer to order coffee in nearby restaurants, and measure the temperature.

  36. avatar
    roadburner June 24, 2015 at 7:23 am #

    the leibeck case to me is just an example of someone sueing a company for their own stupidity.

    coffee is served hot, and the degree of hot is irrelevent – it’s a hot liquid.

    someone putting a styrofoam or paper cup between their thighs (which have very large muscles) and pulling the lid off which then compromises the integrity of the shape, and then complaining that they got burnt when the hot liquid spill out over them is IMO ridiculous.

    for me it epitomises the level at which people cannot deal with the consequenses of their own screwups, and have to blame others and look for someone to pay the bill

    i grew up in a time when if you screwed up and injured yourself, you dealt with it, healed and learnt the lesson, and hopefully people around you would learn from your experience.

    responsibility for your own actions is something that really needs to be re-learnt, as the cry of `it wasn’t my fault! – i want compensation and my medical bills paid!’ has become all too common.

  37. avatar
    Dr. Conspiracy June 24, 2015 at 8:02 am #

    Let me ask you in all honesty, before this discussion would you have expected to get 3rd degree burns from spilling coffee in your lap, require 3 surgeries, be in the hospital for over a week and end up scarred for life?

    If the answer is no, then does this make you stupid?

    People take risks all the time, and do things that are not best practices and not entirely safe, but they do so with an expectation of what the worst case outcome would be. Sure spilled coffee will hurt, but disfigure?

    roadburner: the leibeck case to me is just an example of someone sueing a company for their own stupidity.

  38. avatar
    John Reilly June 24, 2015 at 9:50 am #

    Dr. Conspiracy:
    That argument has strong resonance with me, and indeed is very much like what I have said myself. I feel a strong presumption in favor of the correctness of jury verdicts and judicial rulings. Even so, they get it wrong sometimes (see for example: http://www.cnn.com/2013/12/04/justice/exonerated-prisoner-update-michael-morton/)

    No doubt juries get it wrong at times. Two points. First, instead of John railing at the jury, try suggesting an alternative that produces more reliable results over time consistent with our Constitution. Second, if you read news reports of exoneration cases, the reason the jury got it wrong in my opinion is that often the prosecutor plays fast ad lose with the facts. As the Morton case report shows, the prosecutor got prosecuted for his hiding the ball in that case.

  39. avatar
    john June 24, 2015 at 9:55 am #

    Dr. Conspiracy:
    Let me ask you in all honesty, before this discussion would you have expected to get 3rd degree burns from spilling coffee in your lap, require 3 surgeries, be in the hospital for over a week and end up scarred for life?

    If the answer is no, then does this make you stupid?

    People take risks all the time, and do things that are not best practices and not entirely safe, but they do so with an expectation of what the worst case outcome would be. Sure spilled coffee will hurt, but disfigure?

    I agree, I would not think so. But Ms. Liebeck was unique given the clothes that she was wearing, her age, her reaction time and skin condition. If it had happend to a young quicker person, the injuries would not have been as severe.

  40. avatar
    roadburner June 24, 2015 at 9:56 am #

    one of my classmates when i was at school had a scar on his neck that needed skin grafts from pulling a boiling pot of jelly off the stove

    tea and coffee were always made in our homes with a kettle that had just boiled. we were told by our parents `if you spill this on yourself, you’ll end up in the hospital’, so in answer to what you asked, the idea of being burnt to the point of needing skin grafts from a boiling cup of coffee doesn’t surprise me.

    what does surprise me is the stupidity of sticking a hot beverage in a flexible cup between your legs and doing anything with it thinking it was a good idea

    maybe it’s because of not only the way i was brought up, but also my trade – i’m a motor cycle mechanic and builder. i was taught to use tools and machinery by people who had fingers missing and various scars. some machines and tools can at best rip off a fingernail, but another day tear off your whole hand, so you THINK about what you’re doing.

    before i use machinery or power tools, i put on safety glasses, and anyone who works in my shop does or they don’t touch anything!

    but having said that, we all make mistakes, and i’ve found myself cut and bleeding before ( a thankfully rare occurrence) , but it was my fault, not the manufacturer who made the tool too sharp.

    if someone takes a risk with the knowlege that the outcome can be bad, and when it happens it’s worse than they thought it could be, then they need to live with it. it was their choice to take that risk knowing the possible outcome, and need to take personal responsibility for the outcome.

    if a mc donalds employee had spilled it on her through carelessness, i’d say sue away, but this one? still not in the slightest convinced

    damn!…never thouht i’d find myself defending mc donalds! 😀

  41. avatar
    bob June 24, 2015 at 1:13 pm #

    john: I agree, I would not think so.But Ms. Liebeck was unique given the clothes that she was wearing, her age, her reaction time and skin condition.If it had happend to a young quicker person, the injuries would not have been as severe.

    The law school that john didn’t attend must not have taught him that you take plaintiffs as they are. This is taught in the first week of the torts class that john never took.

    And roadrunner continue to overlook that *McDonald’s* heated the coffee to a dangerously hot temperature, *McDonald’s* knew the coffee’s temperature was dangerously hot, and *McDonald’s* didn’t warn its customers about the dangers.

  42. avatar
    Sam the Centipede June 24, 2015 at 1:44 pm #

    john: 700 idiots who had no commons sense.Didn’t these idiots know that coffee is a hot liquid, it can burn you. Duh!!

    Oh my! The most unintelligent commenter here, a man whose racism guides every bit of steaming nonsense he posts, accuses other people of being stupid!

    If you had twice as many brain cells, you would be almost as intelligent as the grounds at the bottom of a coffee cup, whether boiling hot or not.

    Almost, not quite… because coffee grounds don’t post racist nonsense on blogs!

  43. avatar
    J.D. Sue June 24, 2015 at 1:58 pm #

    bob: The law school that john didn’t attend must not have taught him that you take plaintiffs as they are. This is taught in the first week of the torts class that john never took.


    Exactly. But that’s basic common law torts–you don’t expect John to buy into that English common law thingy, do you?

  44. avatar
    roadburner June 24, 2015 at 1:58 pm #

    bob:

    And roadrunner continue to overlook that *McDonald’s* heated the coffee to a dangerously hot temperature, *McDonald’s* knew the coffee’s temperature was dangerously hot, and *McDonald’s* didn’t warn its customers about the dangers.

    1st point – `dangerously hot’ is subjective. i personally don’t drink tepid coffee and never have, and as i already mentioned, where i came from all hot drinks were made from a BOILING kettle (as in 100ºC and poured straight into the cup or teapot). we didn’t need to be told it would burn us!

    2nd – of course they knew what temp it was at! they were serving hot coffee! and the woman who bought it also knew it was a piping hot beverage in a flexible cup, but still stuck it between her legs in her car! working out that could go very pear shaped is not rocket science!

    3rd – c’mon! you think people need to be warned that hot drinks are hot and they can get burnt from them? anyone capable of lowering their pants before using the lavatory can work that out! the only danger is their own stupidity.

    exactly the same could be said about a `dangerously’ sharp knife, or a `dangerously’ fast car – both can be used safely, but it requires a little common sense.

    and having a soft cup full of hot liquid in your car and putting it between your legs to do anything with it is not showing common sense.

  45. avatar
    JoZeppy June 24, 2015 at 3:21 pm #

    roadburner: 1st point – `dangerously hot’ is subjective. i personally don’t drink tepid coffee and never have, and as i already mentioned, where i came from all hot drinks were made from a BOILING kettle (as in 100ºC and poured straight into the cup or teapot). we didn’t need to be told it would burn us!

    Not subjective at all. At 180-190 degrees you wouldn’t be drinking it at all. 3rd degree burns in 2 to 7 seconds. Fact of the matter is it wasn’t safe for the purpose they sold it for. Expert testimony, which McDonald’s didn’t contest, was that it would not be safe for human consumption for approximately 25 minutes. Your examples of the knife and car point out all the more why McDonald’s had to pay. The knife or car, in theory could be safely used for their intended purpose at the time of sale. The same could not be said for the coffee. Again, no one said that Ms. Liebeck was without fault. The jury just found McDonald’s more liable, because they were sell a product intended for consumption, that could not possibly be safely consumed.

  46. avatar
    bob June 24, 2015 at 4:21 pm #

    Torts has an extensive body of law on the concepts raised — “assumption of risk,” “inherantly dangerous activity,” “comparable/contributory negligence.” And the jury was fully instructed on all of these concepts.

    Which is why the jury that heard all the facts and was fully instructed on all of the relevant law came to its conclusions. Including the one finding Liebeck partially at fault.

  47. avatar
    roadburner June 24, 2015 at 5:18 pm #

    JoZeppy: Not subjective at all.At 180-190 degrees you wouldn’t be drinking it at all. 3rd degree burns in 2 to 7 seconds. Fact of the matter is it wasn’t safe for the purpose they sold it for. Expert testimony, which McDonald’s didn’t contest, was that it would not be safe for human consumption for approximately 25 minutes. Your examples of the knife and car point out all the more why McDonald’s had to pay. The knife or car, in theory could be safely used for their intended purpose at the time of sale. The same could not be said for the coffee. Again, no one said that Ms. Liebeck was without fault. The jury just found McDonald’s more liable, because they were sell a product intended for consumption, that could not possibly be safely consumed.

    i’m not suggesting one should actually drink boiling liquids, just saying that where i’m from, that is how their made, and as soon as infants are old enough to understand, they don’t do stupid things with hot drinks and then try and blame someone else.

    hell, my youngest daughter knows that if I have a drink on the table and steam is coming off it, don’t touch, and she’s 6 years old!

    if a café or restaurant has to sell low temperature food from fear of being sued by some idiot burning themselves on it, then it’s a sorry state of affairs.

    in my province, sopa castillana is a traditional starter. it’s a boiling hot soup, and part of it is a raw egg dropped in it before serving which cooks in the bowl in front of you. it’s not meant to be consumed boiling, but it’s recognised as how it is served.

    and to date, there have been no lawsuits from someone burning themselves eating it too hot

    it (pardon the pun) boils down to what I said – common sense.

  48. avatar
    bob June 24, 2015 at 6:14 pm #

    “Common sense” suggests that if you own a business that serves food, don’t serve it so hot that it burns your customers — and that includes soup:

    Tim Hortons Lawsuit: Hot Soup Incident In 1998 Ends In $69K Judgment.

    Or: Subway Soup Severely Burns Woman, Lawsuit Claims

  49. avatar
    Dave June 24, 2015 at 8:23 pm #

    I believe this was their argument that McDonalds wasn’t just serving coffee that everybody knows can scald you — that McDonalds was serving coffee much more dangerous than their customers would expect. The thing I was reading gave the impression this was quite central to their case. My grasp of the law is weak enough that I couldn’t whether that’s true.

    But my concern was that this defense of the verdict and award said this point was so important, and the evidence they presented was so lame.

    Of course I can see holes in what I’m saying — just because one defense of case did a bad job doesn’t necessarily mean it can’t be defended.

    Dr. Conspiracy:
    I seem to recall that finding, but I don’t see how it is relevant. The fact that other restaurants served dangerously hot coffee shouldn’t make McDonald’s any less liable.

  50. avatar
    averagelawyer June 24, 2015 at 8:53 pm #

    I agree with Doc: if a jury returns a verdict for plaintiff, a claim is not “frivolous.” I’ve done defense-side civil litigation for 25 years, and frivolous suits are a pain in several parts of the anatomy; but, if a case survives a motion to dismiss, or summary judgment, or directed verdict, and goes to the jury, legally, logically and linguistically, it is not frivolous. It may be reversible, a poor decision, etc., but not frivolous.

    ASK Esq. and Georgetown JD are right on the mark in their analysis of Liebeck v. McDonald, ’nuff said.

    Just to agitate John and company, may I point out that Harris v. Ingram is part of a line of American cases which follow the English Common Law rule forbidding the use of mantraps, pitfalls, etc. to maim or kill trespassers?

  51. avatar
    Keith June 24, 2015 at 10:31 pm #

    Sam the Centipede: If you had twice as many brain cells, you would be almost as intelligent as the grounds at the bottom of a coffee cup, whether boiling hot or not.

    Especially the grounds at the bottom of Mrs. Leibeck’s coffee. At the time McDonalds “coffee” was made exclusively from coffee flavored granules known as ‘instant coffee’.

    Now-a-days, in Australia at least, Macca’s have actual coffee available, produced using a proper espresso machine at the proper temperature (amazingly even the milk is usually not burnt).

    Sometimes, when the planets are all in alignment, it is actually drinkable.

  52. avatar
    Rickey June 24, 2015 at 11:02 pm #

    john: I agree, I would not think so.But Ms. Liebeck was unique given the clothes that she was wearing, her age, her reaction time and skin condition.If it had happend to a young quicker person, the injuries would not have been as severe.

    As I tried to explain to you earlier, that is irrelevant. If a driver of an automobile runs down an elderly pedestrian in a crosswalk, the driver doesn’t get a discount on liability because the pedestrian wasn’t quick enough of nimble enough to get out of the way.

  53. avatar
    roadburner June 25, 2015 at 3:41 am #

    bob:
    “Common sense” suggests that if you own a business that serves food, don’t serve it so hot that it burns your customers — and that includes soup:

    Tim Hortons Lawsuit: Hot Soup Incident In 1998 Ends In $69K Judgment.

    Or: Subway Soup Severely Burns Woman, Lawsuit Claims

    well, over that side of the pond

    over here in europe we seem to be able to cope with hot soup and coffee without it becoming a court case, which is why to us euros cases like those seem so very ridiculous

  54. avatar
    roadburner June 25, 2015 at 5:43 am #

    having said that, casting my mind back i do seem to remember a case regarding either KFC or mc donalds when they first brought out their apple pies (those strange rectangular things) which were cooked in the frier and put into a cardboard sleeve.

    the outside would be at a reasonable temp, but the inside was like a napalm strike.

    some people did get burnt by them due to an apple pie having that kind of temp inside was NOT normal nor to be reasonably expected, and places that sold them rightly started putting a warning on the sleeve.

  55. avatar
    bob June 25, 2015 at 12:38 pm #

    Comparing Europe to the United States (and Canada) in this regard is not particularly helpful, e.g., Mother Jones, Why We Sue:

    [T]his difference between Europe and the U.S. is so deeply rooted that it’s not likely to change — and it’s not really due to a national culture that promotes a refusal to accept personal responsibility or anything like that. It’s mostly institutional in nature, and the incentives of our institutions point in the direction of more lawsuits instead of more regulations.

  56. avatar
    Dr. Conspiracy June 25, 2015 at 12:52 pm #

    An illustrative example is a South Carolina statute that limits telemarketing. The consumer’s remedy under the statute is a lawsuit.

    bob: It’s mostly institutional in nature, and the incentives of our institutions point in the direction of more lawsuits instead of more regulations.

  57. avatar
    Dr. Conspiracy June 25, 2015 at 12:56 pm #

    Been there, burned that. They don’t fry them any more–they’re baked.

    roadburner: the outside would be at a reasonable temp, but the inside was like a napalm strike.

  58. avatar
    Dr. Conspiracy June 25, 2015 at 12:58 pm #

    How about this product liability question:

    Man burned having sex with a pizza:

    http://www.huffingtonpost.com/2014/02/25/man-burned-sex-dominos-pizza_n_4855071.html

    Domino’s response:

    “Our apologies, we will look for a way to notify customers of this in future. Thank you for bringing this to our attention.”

  59. avatar
    roadburner June 25, 2015 at 1:04 pm #

    Dr. Conspiracy:
    How about this product liability question:

    Man burned having sex with a pizza:

    http://www.huffingtonpost.com/2014/02/25/man-burned-sex-dominos-pizza_n_4855071.html

    Domino’s response:

    “Our apologies, we will look for a way to notify customers of this in future. Thank you for bringing this to our attention.”

    ufff!….if he wanted extra pepperoni on it, he only needed to ask 😀

  60. avatar
    Andrew Vrba, PmG June 25, 2015 at 2:24 pm #

    Dr. Conspiracy:
    How about this product liability question:

    Man burned having sex with a pizza:

    http://www.huffingtonpost.com/2014/02/25/man-burned-sex-dominos-pizza_n_4855071.html

    Domino’s response:

    “Our apologies, we will look for a way to notify customers of this in future. Thank you for bringing this to our attention.”

    Well…that’s enough internet for today…

  61. avatar
    Crustacean June 25, 2015 at 2:25 pm #

    I’d say the abomination we call today the “Confederate Flag” or “Rebel Flag” is more a symbol of racism than treason. While it was used as a battle flag by General Lee’s Army of Northern Virginia, that flag design was never a national flag for the CSA. It became popular again during WW2, when some Southern units flew it as an unofficial banner. But the most controversial aspect of this emblem began when – not coincidentally – two years after the “Brown v Board of Education” SCOTUS decision, Ol’ Dixie was incorporated into the Georgia state flag. It has been used as a symbol of opposition to the integration of schools many times since. Of course, the KKK think it’s pretty cool, too.

    John Reilly: I want to know where Cody, Sven, Scott, John and Orly etc are on the Confederate Flag issue. There’s an issue in the news this past week. There’s a symbol of actual treason against our Constitution.

  62. avatar
    J.D. Sue June 25, 2015 at 6:15 pm #

    Dr. Conspiracy: How about this product liability question:

    Man burned having sex with a pizza:

    http://www.huffingtonpost.com/2014/02/25/man-burned-sex-dominos-pizza_n_4855071.html

    Domino’s response:

    “Our apologies, we will look for a way to notify customers of this in future. Thank you for bringing this to our attention.”

    —-
    Hmmm. Let’s see. Is he raising an action in torts or an action in contracts? (oh no, not that pesky common law again…)

    Seems to me it’s actually an action in contracts because of the relief requested–a refund. As such, he’s suggesting that Dominos has an express or implied warranty that it will return your money if not satisfied having sex with the pizza.
    Domino’s response did not indicate any willingness to refund the price of the pizza.

    Dominos did, however, demonstrate that (unlike McDonalds) it takes seriously its duty to warn customers of foreseeable known risks associated with its pizza product (and thereby avoid future actions in tort whereby Dominos might be liable for costly compensatory damages including medical bills, pain and suffering, etc.). Also, I think Dominos’ courteous apologies and thank-you was a nice touch–courtesy goes a long way and likely increases good will value. But will they follow through? Let’s hope this little twitter exchange doesn’t eventually find its way into a discovery production for another similar injury in the future.

    And, Hey, John, what say you? Doesn’t this remind you of the case with the dangerous lap dance, where the bar/dancer failed to warn the guy with the lap about the risk of whiplash? I wonder what the The Law of Nations says about all this.

  63. avatar
    Keith June 25, 2015 at 8:50 pm #

    Crustacean:
    I’d say the abomination we call today the “Confederate Flag” or “Rebel Flag” is more a symbol of racism than treason.

    Given the mindset of the ‘SovCits’ wouldn’t it be a symbol (i.e. absolute proof) of military occupation by the State of Virginia?

  64. avatar
    James M June 26, 2015 at 4:29 pm #

    Crustacean: I’d say the abomination we call today the “Confederate Flag” or “Rebel Flag” is more a symbol of racism than treason.

    In my middle school days it was a way of demonstrating one’s badness with a certain degree of impunity. The same kids would experiment with all kinds of disturbing things (it’s normal) but basically if you drew swastikas on your book covers you’d get some undesirable (embarrassing) attention from authority figures. Confederate flag? Not so much.

  65. avatar
    Rickey June 26, 2015 at 5:10 pm #

    J.D. Sue: —-

    And, Hey, John, what say you?Doesn’t this remind you of the case with the dangerous lap dance, where the bar/dancer failed to warn the guy with the lap about the risk of whiplash? I wonder what the The Law of Nations says about all this.

    Are you saying that you’ve never read Vattel’s chapter on lap dances? Perhaps Lupin can enlighten us.

  66. avatar
    realist June 27, 2015 at 6:56 pm #

    john: I agree, I would not think so.But Ms. Liebeck was unique given the clothes that she was wearing, her age, her reaction time and skin condition.If it had happend to a young quicker person, the injuries would not have been as severe.

    Yet she’s allowed to wear what she was wearing. She was not required to dress as if she was expecting to get severely burned. She’s also allowed to be the age she is with whatever reaction timing she has.

    I suspect, John, you likely think it even more negligent on her part because she was driving when the spill occurred.

    (Please let john answer that one) no help please

  67. avatar
    realist June 27, 2015 at 7:07 pm #

    bob:
    Torts has an extensive body of law on the concepts raised — “assumption of risk,” “inherantly dangerous activity,” “comparable/contributory negligence.”And the jury was fully instructed on all of these concepts.

    Which is why the jury that heard all the facts and was fully instructed on all of the relevant law came to its conclusions.Including the one finding Liebeck partially at fault.

    True.

    They also were apalled at the complete non-caring attitude of the McDonald’s rep on the stand. He was an ass.

    They also didn’t much like that one if the reasons they served their coffee so hot was that by the time it cooled enough to drink and was consumed it was less likely that folks would want a refill (free) and would save money.

    And there was more. It’s been a long time and my memory fails me somewhat.

  68. avatar
    Rickey June 27, 2015 at 10:54 pm #

    realist:

    They also were apalled at the complete non-caring attitude of the McDonald’s rep on the stand.He was an ass.

    They also didn’t much like that one if the reasons they served their coffee so hot was that by the time it cooled enough to drink and was consumed it was less likely that folks would want a refill (free) and would save money.

    People who aren’t involved in personal injury lawsuits don’t realize that the demeanor of the parties is often a critical factor in how a jury reaches a verdict.

    Back in the seventies and eighties (and since then, to a lesser degree) there was a rash of incidents in which children were getting strangled in the loops of cloth towel dispensers (you don’t see them very much anymore). At a meeting with defense attorneys and its insurance company after a lawsuit was filed, the manufacturer’s chief engineer confirmed that they had figured out a way to make if difficult for children to put their heads through the loops, but they decided against making the modification because it would have cost too much.

    The insurance company didn’t want to see that man on the witness stand, so they settled the lawsuit.

    http://image.made-in-china.com/2f0j00YvnEylTbhckg/Automatic-Hand-Towel-Dispenser.jpg

  69. avatar
    bob June 28, 2015 at 9:09 pm #

    realist: True.
    They also were apalled at the complete non-caring attitude of the McDonald’s rep on the stand.He was an ass.

    Trial lawyers are well compensated to make these tactical decisions. That McDondald’s had bad witnesses (and bad lawyers) is not the plaintiff’s fault.

    They also didn’t much like that one if the reasons they served their coffee so hot was that by the time it cooled enough to drink and was consumed it was less likely that folks would want a refill (free) and would save money.

    So McDonald’s knowingly served dangerous coffee to maximize it profits. Sounds like a perfect reason for the jury to award punitive damages, which it did.

  70. avatar
    realist June 28, 2015 at 9:17 pm #

    bob: Trial lawyers are well compensated to make these tactical decisions.That McDondald’s had bad witnesses (and bad lawyers) is not the plaintiff’s fault.

    So McDonald’s knowingly served dangerous coffee to maximize it profits.Sounds like a perfect reason for the jury to award punitive damages, which it did.

    Classic case, bob.