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Kuros
Joined: 27 Apr 2004
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 Posted: Sat Aug 11, 2007 7:44 pm Post subject: |
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| Gopher wrote: |
| huffdaddy wrote: |
| And this is where McDonalds loses the sympathy vote. |
Why should McDonald's pay more than his medical costs? How much should McDonald's pay him and how did you arrive at whatever figure this might be? |
| Huffdaddy wrote: |
| Punitive Damages |
Huffdaddy is correct. The plaintiff should be awarded extra money for going through the torts claim and risking his own lawyer's fees in the case of a lawsuit. Its more worthy than winning the lottery and since it pertains to the public's safety it might be even more worthy than investing in a profitable stock.
In addition, the defendent needs to be penalized to the extent that would alter its behavior in the future. When McDonald's lowered the temperature at which it served its coffee, it affected everyone who went to McDonalds for the better. |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 8:01 pm Post subject: |
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| Gopher wrote: |
| huffdaddy wrote: |
| Google it. You always love referring people to books that are unobtainable in Korea. |
No.
Because I doubt that you truly know anything about the details of this case. I think you read a blurb about it in the OP, above. And now you are playing games.
Either you know what you are talking about or you do not. Given you unwillingness and/or inability to elaborate, I am going to have to go with the former. |
The former is indeed correct. I knew lawyers back in the early 90's who defended the decision. Articles on the internet reaffirm my memory of the case.
But given your inability to understand my simple take on the case at hand, I don't believe you're quite ready to tackle legal analyses.
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| And, by the way, I lived in South Korea. I never had any problem getting books. Try Amazon.com. Try the local guy at WhattheBook. Do not be so lazy. |
And the relevance after 3 weeks would be what? It's a pretentiously cheap cop out in an on-line discussion.
Given you're unwillingness to Google "Mcdonald's coffee case," you're charge of laziness is rather ironic. |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 8:17 pm Post subject: |
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| Gopher wrote: |
| Wrong. Their refusal to succumb to plaintiff's more-or-less blackmail from the beginning caused you to loose all sympathy for their position -- assuming they ever enjoyed any of your sympathy in the first place? I doubt it. |
Oh, and you might want to go back and try to find where I ever expressed any personal sympathy or loss of sympathy for McDonald's position.
And it's "lose", not "loose." |
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Gopher
Joined: 04 Jun 2005
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| Posted: Sat Aug 11, 2007 9:58 pm Post subject: |
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| Kuros wrote: |
| ...the defendent needs to be penalized to the extent that would alter its behavior in the future. |
OK. I give up on this one. Clearly swimming against very strong currents.
Let McDonanld's and all other burger sellers be forewarned: should any crew member ignore a customer's request to prepare a Quarter-Pounder without cheese the judicial system will intervene and force the corporation to modify its egregious behavior to the tune of $10 million in punitive damages.
Caveat vendidor.
| Kuros wrote: |
| When McDonald's lowered the temperature at which it served its coffee, it affected everyone who went to McDonalds for the better. |
It is also part of a larger process in personal-injury litigation whose net result is making us a nation of morons in need of constant supervision:
Did you know that coffee is hot and can burn you? Indeed. Thanks tort law.
Did you know that it is dangerous to walk on a floor that has just been mopped and remains wet and slippery? You don't say? Good to know. Because it never would have occurred to me without the litigation attys to tell me so.
Oh yeah, one other thing: you realize that it is not safe to attempt to clean a ceiling fan while the fan is operating, right? Thanks, anyway. But this one I have heard about. It was an actual case I read in law school a while back. You see, this lady in California climbed up on a chair once-upon-a-time and tried to dust a ceiling fan. It gouged her neck badly and she had to seek medical attn.
And she never would have known. How could anyone have even suspected? The evil fan-manufacturing company never warned its clients not to do this. Thank God the personal-injury lawyers intervened and saved the day. Because now we all know...
Last edited by Gopher on Sat Aug 11, 2007 10:22 pm; edited 3 times in total |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Aug 11, 2007 10:09 pm Post subject: |
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| Gopher wrote: |
| Kuros wrote: |
| ...the defendent needs to be penalized to the extent that would alter its behavior in the future. |
I give up on this one.
Let McDonanld's and all other burger sellers be forewarned: should any crew member ignore a customer's request to prepare a Quarter-Pounder without cheese the judicial system will intervene and force the corporation to modify its egregious behavior to the tune of $10 million in punitive damages.
Caveat vendidor. |
Let's plant your white flag on the next Quarter-Pounder. Mmmmm, Freedom Fries go good with Victory Patties!!!
$10 million is really nothing to McDonald's at the end of the day, IMO. I came close to typing this in the last post, but I'll say it here, this may not be as clear cut a victory as the coffee case should the plaintiff win. We'll see.
Lastly, dmbfan, you have to learn to title your threads better. 'Oh, dear?' How does that pull me in? |
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Kuros
Joined: 27 Apr 2004
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| Posted: Sat Aug 11, 2007 10:11 pm Post subject: |
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| Gopher wrote: |
Did you know that coffee is hot and can burn you? Indeed. Thanks tort law. |
Mmmmmm. Well it's an issue when you operate a drive-thru and people are trying to drive as they order their coffees. Want to guess why Dunkin' Donuts has not been sued for this? Hint: its not because they're not a deep pocket. |
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Gopher
Joined: 04 Jun 2005
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| Posted: Sat Aug 11, 2007 10:21 pm Post subject: |
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| Kuros wrote: |
| $10 million is really nothing to McDonald's at the end of the day... |
Understood. But McDonald's Corp.'s take should bear no relevance at all to the punitivate damages issue.
How does net profit establish egregious, reprehensible wrongdoing or support that its behavior is so bad that it ought to be punished in this particular fact pattern (Quarter-Pounder hold-the-cheese -- I keep repeating that, hoping that someone besides me will pick up on the absurdity of this case...can you not see the cheese on a hamburger you are about to eat...? Should you not bear any responsibility at all for what you eat...? Are we like helpless infants...?)
Also, got this from Wikipedia's "Punitive Damages" summary...
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Punitive damages are a focal point of the "tort reform" debate in the United States, where numerous highly-publicized multi-million dollar verdicts have led to a fairly common perception that punitive damage awards tend to be excessive. However, statistical studies by law professors and the Department of Justice have found that punitive damages are only awarded in two percent of civil cases which go to trial, and that the median punitive damage award is between $38,000 and $50,000.
In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional.
In BMW of North America, Inc. v. Gore (1996), the Court ruled that punitive damages must be reasonable, as determined based on the degree of reprehensibility of the conduct, the ratio of punitive damages to compensatory damages, and any criminal or civil penalties applicable to the conduct. In State Farm Auto. Ins. v. Campbell (2003), the Court held that punitive damages may only be based on the acts of the defendants which harmed the plaintiffs.
Most recently, in Philip Morris USA v. Williams (2007), the Court ruled that punitive damage awards must be limited to the harm caused to the individual plaintiffs involved in the litigation at hand, although harm to others may be a criterion in determining the reprehensibility of the defendants' conduct. |
Now, I do have access to Nexis-Lexis and Westlaw and could get the case reports on these cases. But I will not post them here because it is proprietary information and I do not want to risk losing my privileges. So Wikipedia's summary will have to do.
What, in your estimation, Kuros, is McDondald's "degree of reprehensibility of conduct" in getting this drive-through, Quarter-Pounder hold-the-cheese, order wrong...?
Or how about this summary, from the above cite? "...any ratio of 10:1 or higher is almost certainly unconstitutional." Plaintiff's brush with death (!) produced medical bills of $700. According to this, he ought not get more than $7,000 in punitive damages -- and really, according to the 4:1 ratio, he ought to get about $2,800. I would grant that -- provided plaintiff gets sent to counseling on learning how to friggin' look before you eat.
And, lastly, the above-cited cigarette case would seem to establish grounds for denying plaintiff's mother and friend any award. Would you agree that that sounds reasonable...?
Last edited by Gopher on Sat Aug 11, 2007 10:45 pm; edited 4 times in total |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 10:32 pm Post subject: |
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| Gopher wrote: |
| Let McDonanld's and all other burger sellers be forewarned: should any crew member ignore a customer's request to prepare a Quarter-Pounder without cheese the judicial system will intervene and force the corporation to modify its egregious behavior to the tune of $10 million in punitive damages. |
Who, besides the plaintiff and his lawyer, says he deserves "$10 million"?
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It is also part of a larger process in personal-injury litigation whose net result is making us a nation of morons in need of constant supervision:
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I suppose we'd all be much better off living in a place without such protection. Say, Bhopal, for example. |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 10:37 pm Post subject: |
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| Gopher wrote: |
| Quarter-Pounder hold-the-cheese -- I keep repeating that, hoping that someone besides me will pick up on the absurdity of this case... |
I haven't been to McDonald's in over 10 years. But according to their website, "Quarter Pounder�" is a separate item from "Quarter Pounder� with Cheese". |
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Gopher
Joined: 04 Jun 2005
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| Posted: Sat Aug 11, 2007 10:42 pm Post subject: |
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| huggdaddy wrote: |
| I suppose we'd all be much better off living in a place without such protection... |
Save your sarcasm. This is not an either/or choice. And it certainly is not an either/or choice between such extremes as $300 million for spilled hot coffee or $10 million for a Quarter-Pounder with cheese vs. no tort system at all.
| huffdaddy wrote: |
| "Quarter Pounder�" is a separate item from "Quarter Pounder� with Cheese". |
Great find, Sherlock. Tell me something else: if plaintiff could go to all this trouble...and if he were so concerned about this life-and-death matter...
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Jeromy did his part to make it known he didn't want cheese on the hamburgers because he is allergic, Houston said.
He told a worker through the ordering speaker and then two workers face-to-face at the pay and pick-up windows that he couldn't eat cheese, Houston said. |
Why could he not take two seconds to look at the hamburger and confirm that it indeed had no cheese?
Would you have?
Last edited by Gopher on Sat Aug 11, 2007 11:12 pm; edited 3 times in total |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 10:46 pm Post subject: |
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| Gopher wrote: |
| Why could he not take two seconds to look at the hamburger and confirm that it indeed had no cheese? |
Why not take two seconds and look at my first post in this thread. |
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Gopher
Joined: 04 Jun 2005
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| Posted: Sat Aug 11, 2007 11:01 pm Post subject: |
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| huffdaddy wrote: |
| Why not take two seconds and look at my first post in this thread. |
Better yet, why not just help you follow that through to its logical conclusion...?
This case occurred in Morgantown, West Virginia -- unless there is another "Morgantown" I have overlooked. (Now that I have investigated this further, plaintiff's moroninity makes much more sense.  )
In any case, West Virginia, like every other state, recognizes the "contributory negligence/comparative fault" doctrine. West Virginia in particular has established a fifty-percent bar.
This means that if the court rules that plaintiff was 50% or more responsible for the injuries that he sustained, he cannot seek or recover compensatory damages (and that means no punitive damages, either; at least I have never heard of any court denying compensatory damages but awarding punitive damages -- if someone else here knows something different, I would like to see it).
If plaintiff was 49% or less responsible for the injuries that he sustained, he can seek and recover damages. But guess what? Those damages will be divided up proportionally between him and defendant. (Thus, the likely basis of McDonald's original offer to settle this and pay half plaintiff's medical expenses.)
Where this will end up is anybody's guess. But in my opinion, given the vigorous defense McDonald's can and will mount, this guy who never took a second to look at the hamburger that he bit into, this guy who claims he was so concerned about the cheese but could not care less to look at the hamburger he was about to eat before eating it, has a low probability of success in West Virginia. |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 11:12 pm Post subject: |
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| Gopher wrote: |
Better yet, why not just help you follow that through to its logical conclusion...?
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Which is what? That you lack reading comprehension? Or you just like pulling "contributory negligence/comparative fault" doctrine" out of your ass? |
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Gopher
Joined: 04 Jun 2005
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| Posted: Sat Aug 11, 2007 11:27 pm Post subject: |
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ROFL. Well said. I guess that is really telling me.
You went from hamburgers in the dark (suggestive of contributory negligence/comparative fault) to punitive damages on this thread's page one.
I merely corrected you. Now, you allege that I fabricated "contributory negligence" and "comparative fault." Not so. And so what if I combined the two in a single, general doctrine? Many do. I was condensing and summarizing one concept that evolved into another. You know the lawyers who worked on the McDonald's coffee case, remember? Should you not have at least heard something about this line of insurance defense...?
Found Wikipedia's summaries for you; and Wikipedia links a national insurance-defense firm's page on exactly what I was talking about. They go one better and describe every state's standards. And, Huffdaddy: please do note how Matthiesen, Wickert & Lehrer, S.C. titled their document.
Wikipedia on "contributory negligence"
Wikipedia on "comparative negligence"
Matthiesen, Wickert & Lehrer, S.C. |
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huffdaddy
Joined: 25 Nov 2005
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| Posted: Sat Aug 11, 2007 11:54 pm Post subject: |
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| Gopher wrote: |
| You went from hamburgers in the dark (suggestive of contributory negligence, and probably more than 50%) to punitive damages. |
If a jury hears the case, they'll be the ones deciding the level of damages. Who's more likely to get more sympathy from the jury? The guy who almost died? Or the multi-billion dollar corporation who tried to nickel and dime him out of $350 (even if that was the extent of their legal obligations)?
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| Now, you allege that I fabricated "contributory negligence" and "comparative fault." Not so. |
I am familiar with contributory negligence/comparative fault. I meant to call you a smug wanker. Or something like that.
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| You know the lawyers who worked on the McDonald's coffee case, remember? |
Oh my. You can't read, can you. Is it late there? Are you drinking?
Reminds me why I don't post here anymore. |
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