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Zippers, penis injuries, and McDonald's hot coffee redux


The McDonald's coffee case is an outlier of the tort system. In the twentieth century, the vast majority of court cases to consider restaurant liability for selling hot coffee that injured consumers threw the cases out of court. In 1994, however, a sympathetic elderly plaintiff, Stella Liebeck, spilled coffee on herself, sat in the hot puddle for ninety seconds instead of wiping herself off, and severely burned her crotch. She sued on a few theories: (1) any coffee sold above 140 degrees is capable of causing third-degree burns and is therefore unreasonably dangerous; (2) McDonald's failed to adequately warn of the danger because the warning on Liebeck's cup of coffee wasn't large enough; (3) because McDonald's knew of a few hundred previous injuries (out of billions of cups of coffee sold), they were malicious in continuing to sell coffee at a temperature consumers wanted, and merited punitive damages. The judge failed to apply the law correctly. The jury—as juries are wont to do when they see photos of third-degree burn injuries for the first time in their life, and incorrectly told by a judge that they are legally entitled to give money to the person who suffered those horrific injuries—awarded millions of dollars of punitive damages.* As Walter Olson recently noted, the case makes the American legal system a laughingstock worldwide.

When confronted with such ridiculous lawsuits as Roy Pearson's $54 million pants suit, the litigation lobby sensibly distances itself from the plaintiff—though Pearson wasn't doing anything that more competent trial lawyers did to make hundreds of millions of dollars in Arkansas over the last eight years. But somehow, instead of saying that Americans shouldn't judge the tort system on one unusual result, the litigation lobby has campaigned to argue that this absurdity is an aspirational result that all the other courts should have similarly reached. A intellectually dishonest movie was even made on the subject. And appallingly, if one is to judge by Reddit threads and most tort-law classes, the litigation lobby has succeeded in spreading enough urban legends about the case to make some people think that the result isn't absurd.

In the case of Bogle v. McDonald's, the England and Wales High Court correctly rejected the entire idea of liability for hot coffee; so did Judge Easterbrook in McMahon v. Bunn-O-Matic. I've never seen a defender of the Liebeck verdict even attempt to explain why these decisions are wrong (as they must be if Liebeck is correct); you'll never see Susan Saladoff or ATLA even admit that these cases exist.

In a recent post, I pointed out the absurdity of the theory of McDonald's liability. Another every-day object, men's pants with zippers, is responsible for thousands of emergency-room visits for zipper-related penis injuries: 17,616 men went to the emergency room between 2002 and 2010 for zipper-related penis injuries, likely over 2000 a year if we account for undercounting. Manufacturers know this or, at least, should know this because of the press coverage of the fact. By Saladoff's defense of the McDonald's coffee case, every one of these thousands of men is entitled to a jury trial over whether pants manufacturers should be subjected to punitive damages for causing injury. The proposition is obviously absurd, but so is the McDonald's coffee case.

A month later, a trial lawyer finds the post and tweets "So, Ted Frank (TORT REFORMER!) is mad he can't sue for penis zipper injuries??" Well, that's clearly not my argument. Anyone who is claiming that I was arguing that I should be able to sue pants manufacturers for penis zipper injuries is either illiterate or mendacious and can be safely ignored. (Though, as JAB joked, "If even JDs are illiterate, what good are warning labels supposed to do?")

Indeed, the fact that the illiterate-or-dishonest trial lawyer thought that the idea of zipper-lawsuits was absurd proves my point: of course you can't sue for zipper injuries, but there is no difference between the theory of coffee liability and the theory of zipper liability.

For some reason, David Sugarman decided to take up a defense of both the illiterate tweet and the McDonald's coffee case. We'll start by noting that even this trial lawyer thinks that zipper lawsuits are absurd.

But Sugarman fails to honestly address my argument. He attempts to distinguish the zipper case from the coffee case without thinking very hard about what he's writing:

And now Mr. Frank wants to talk about zipper injuries to the schlong. So let's talk. Here is how it works. If the manufacturer sells a dangerous product and the danger could be eliminated by design, then the manufacturer is responsible. After all, it is up to manufacturers who profit from selling products to take steps to avoid needlessly injuring consumers. I assume even the Manhattan Institute agrees with that basic principle, but maybe I am wrong.

But this ipse dixit assertion of why zipper lawsuits are impermissible fails to make the case. Of course the danger of zipper injuries "could be eliminated by design": just make pants with a button fly or a drawstring, or an extra layer of fabric between the fly and the crotch. Indeed, the case for pants product liability is much stronger than the case for coffee liability, and not just because there are many more zipper injuries than coffee injuries, though the population of American coffee drinkers (54% drink coffee every day) is greater than the population of Americans who are males who wear pants with zippers (less than 50%). Stella Liebeck's coffee cup had a warning; I've never seen a pair of pants with a warning. And as Judge Easterbrook points out in McMahon, hot coffee has to be hot by definition; if it's not hot enough to cause third-degree burns, it's not hot enough to optimize flavor.** But pants do not require zippers to close. Liebeck argued that the coffee was "unreasonably dangerous" because it was capable of causing injury; but the same argument can be made for pants.

One can argue that both pants manufacturers and coffee vendors should be liable for injuries caused when people injure themselves; that's bad public policy that most people will instinctively reject, but it's at least intellectually honest. One can argue, as I do, that neither should be liable. One could even conceivably argue that pants manufacturers should be liable for failure to warn but coffee vendors with warnings on their cups shouldn't. But it's disingenuous to argue that Liebeck is correct but that sufferers of zipper-related penis injuries are not entitled to jury trials. (Sugarman's "Seventh Amendment" argument is bogus; nothing in the Seventh Amendment prevents judges from throwing out claims that have no legal basis, and he doesn't seem to think that the Seventh Amendment precludes a judge from throwing out a lawsuit over zippers.)

Finally, note that Sugarman was told of McMahon v. Bunn-O-Matic but made no attempt to explain why it's wrong or even inform his readers that it exists. This is a very telling omission.

Ten years after I started discussing it, I'm still waiting for a trial lawyer to give an honest defense of the Liebeck case. It hasn't happened yet.

(Update: in the comments, Sugarman now concedes that his theory of product liability requires the conclusion that zipper injuries merit jury trials. He still hasn't corrected his post asserting that I was ignorant of product liability for making the comparison between the coffee case and the zipper hypothetical. I look forward to Sugarman seeking justice for the 2000+ men injured by zippers every year. He still sidesteps addressing McMahon's and Bogle's ridicule of the Liebeck theory.)

*Even the judge who incorrectly failed to throw the case out thought that the jury had been carried away by emotion, and reduced the total jury award to $640,000. It is a remarkable fiction of the jury system that a jury so carried away by emotion to merit remittitur is entitled to a presumption of adjudicative reasonableness when the same jury determined liability, but we'll leave that issue for another day.

**Thus, every vendor of hot coffee serves coffee in the 170 to 190-degree range, tens of degrees hotter than what Liebeck claimed was "unreasonably dangerous." And, indeed, every major vendor of hot coffee—McDonald's, Burger King, Starbucks, Dunkin Donuts, etc.—has been sued for third-degree burns caused by their coffee in the last twenty years. If you have a high-quality coffeemaker, you have coffee that hot, too; if you boil water for tea, that 212-degree water you pour is even hotter than McDonald's hot coffee.


So I read the Bunn case. It's not nearly as persuasive as you seem to think. The coffee maker is not proven defective, but more important, it is not a product. Coffee is the product. In many jurisdictions--I don't know Indiana--the package is part of the product. So the styrofoam foam cup is likely part of the product if it can't safely hold the hot liquid, and the liquid is dangerous. I see that the family settled with the cup manufacturer. This is consistent with the law of defective products in most jurisdictions.

I don't see how there is a products case against Bunn. Not to mention that there is a failure of proof, at least according to the Court. I don't see how this impacts the Liebeck claim, other than both are coffee burns.

I don't think you are getting my point about Liebeck and your hypothetical zipper case. It *is* a question of proof. As the advocate for the consumer, can I adduce proof that the coffee or the zipper is dangerously defective? If I can, the injured consumer should have her day in court. If I cannot, we should lose. Nobody argues for absolute liability. Nor should we get a pass on proving the case. But the courthouse needs to stay open. Because the same political machine that hates litigation and consumer claims is also bent on removing regulation. One or the other is essential to a safe, sustainable economy and a healthy society. None leads to simple predation and--eventually--calamity.

My personal preference, oddly, is for safety via regulation. As the guy who tries to pick up the shattered pieces after catastrophe, things don't fit back together nearly as well.

Prevention is a much wiser approach. But then we hear about how regulation is stifling, inefficient, kills innovation, etc. (Tell that to the citizens and survivors in West, Texas.) So that choice, once made, mandates a healthy civil justice system. Because if we are going to have neither, then we're simply opting for predation.

Back to Liebeck: The outcome is not surprising. Nor is it wrong. A seller that is confronted by multiple injuries caused by its product reacts by saying, essentially, we are not changing a thing. That is a problem. Especially when it causes injuries that you concede are serious to an elderly, vulnerable woman.

This is a much better comment than the string back on my blog.

Assuming the court faithfully summarized the record and applied the correct standard of review (big if's), I don't think McMahon was wrong. I frequently disagree with Judge Easterbrook, but I don't see that he missed the mark as to Bunn. I agree that the lawyering on both sides leaves something to be desired.

As I read the case, there was evidence that the coffee maker performed as designed. From the court's summary and my quick read, it doesn't look like plaintiff showed that the process resulted in coffee that was beyond the temperature of what would be reasonably expected. That Liebeck goes the other way is, I assume, a question of the evidence.

And in any event, as I noted, the products claim apparently succeeded against the manufacturer of the package (i.e. the cup).

When talking about numbers and the company's attitude, you have collapsed liability and damages. The liability starts with a dangerous defect. In Liebeck, the company's attitude is the part of the proper assessment of punitive damages. In that era (pre Campbell v. State Farm), the number of people injured by misconduct was also a relevant consideration in the amount of punitive damages to award. Those things have changed somewhat.

So the best question--and one worth all the bump in grind--is at the close of your comment. Why, indeed, should McDonald's be liable for people spilling coffee on themselves when selling hot coffee is not prohibited by legislation?

Because food safety, which, interestingly, is at the root of all product liability law, falls on the seller. They control the production, they profit, and bad things happen when they sell unsafe food. Burns often start with accidental exposure. McDonald's has made gazillions by promoting and building a drive through food component of its business. Cool. But with that comes the responsibility to sell safe products.

So if there's a risk that a consumer will burn herself on the product, they have multiple engineering methods to eliminate the hazard. One is a better container, another one is lowering the temp, and the third--which is not a very good one--is a warning. Because at bottom, a manufacturer must not unnecessarily cause injury to its customers. (Right? I assume we agree on that basic principle???)

To the extent your criticism is about Ms. Liebeck's role in spilling on herself, the jury considered and allocated fault to Ms. Liebeck for her portion of fault. That's what juries are for.

Good thing that after 10 years, manufacturers and suppliers of hot coffee now know exactly what temperature to serve coffee to be safe (both from spill injury and lawyers).

Oh wait....

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.