Date:	Tue, 2 Jan 2007 15:01:56 -0800
From:	"David Schwartz" <davids@...master.com>
To:	"Linux-Kernel@...r. Kernel. Org" <linux-kernel@...r.kernel.org>
Subject: RE: OT Coffee (was Re: Open letter to Linux kernel developers (was Re: Binary Drivers)


> How many of them stuffed the cup between their legs though? I think it
> she would have sqeezed the cup too hard and burned her hand and sued
> McDonalds for that people would be more understainding...

How would what she did have any bearing on the key issue, which is whether
or not McDonald's was in any way negligent or serving a defective or
unreasonably dangerous product? This case should never have gotten past the
earliest stages, and numerous factually similar cases were properly
dismissed.

There is simply no way you can argue that McDonald's failed to warn people
about the risks. The cup says "hot" on it, and nobody can reasonably claim
they didn't know coffee was served hot. People might not realize that coffee
is hot enough to cause third-degree burns, but McDonald's can't include an
education with each cup of coffee, and the plaintiff's never suggest what
warning they think would have been appropriate. Any "failure to warn" type
argument is absurd on its face. (Does anyone honestly think anything would
change if McDonald's included some kind of notice on the cups?)

There is similarly no way you can argue that the product is unreasonably
dangerous or defective. McDonald's serves coffee at the temperature people
want their coffee served, well within industry standards. Hot coffee is
inherently dangerous, and asking McDonald's to make their coffee colder than
industry standards just to make it less dangerous is to argue that stores
should sell dull knives.

McDonald's serves coffee at the temperature consumers want it, within
accepted standards, that makes any danger inherent in that temperature
reasonable. There is no suggestion that the cups or lids are somehow
unsuitable. Any "defective product" or "unreasonably dangerous" argument is
absurd on its face.

What type of legal claim does this leave?

The claim that McDonald's settled "similar cases" and is thus being
arbitrary or trying to hide anything is nonsense. McDonald's, and other
coffee sellers, have settled cases where they *did* do something wrong, such
as failing to properly close the lid or where an employee actually dropped
or spilled the coffee on a customer.

The Stella Liebeck case, however, is a textbook example of a jury finding
for a plaintiff in a completely meritless case for no reason other than that
the defendant had deep pockets and the plaintiff was badly hurt. That there
is no plausible connection between anything the defendant did wrong and the
plaintiff's injuries was totally ignored. That none of the plaintiff's
claims had even one shred of legal merit was totally ignored.

What really amazes me though is that people continue to try to find some way
to justify this crazy case. That ATLA defends the case with a series of
confusing "almost sort of true" statements is embarassing.

DS

PS: In my previous post I made a few temperature conversion errors between
Farenheit and Celsius. All temperatures were correct in the first specified
units and the errors didn't affect the reasoning. My apologies, and thanks
to those who caught it.


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