Lee Sterry: Legal matter time with Chris Richard. He’s in studio with us today, from Graves and Richard, Niagara’s largest personal injury law firm. And we are going to delve into an area today that is greatly misunderstood in a lot of cases, Chris, and that’s negligence claims.
Chris Richard: That’s right, good afternoon.
Lee Sterry: Good afternoon again.
Chris Richard: It’s good to be here again. Yeah, negligence claims. They tend to get a bad reputation and I think they often get a bad reputation in the community or, sorry, in the media and then that flows down to the community.
Lee Sterry: It’s always the media’s fault, it’s always our fault, we have broad shoulders, and we can take it, now that that’s been said.
Chris Richard: As long as we agree on that point. But what I wanted to do was to explain a little bit about the purpose behind negligence claims and then talk a little bit about some of the misconceptions that we see. So first off, what do we mean by a negligence claim? So, it’s actually quite broad and can involve a lot of things. Some examples that we typically think about would be icy side walks, driveways, trip hazards, defective products, actions of somebody; so if you’re walking and you accidentally trip into somebody and cause them to fall. I have a lot of claims involving people riding bicycles and knocking into pedestrians, things like that. All of those things would fall under negligence type of claims. And these claims are important and there are really two purposes of a negligence type of claim. So if this has happened to somebody and they come into my office, their main concern is compensation. That’s one of the main purposes of negligence law. And we have to remember, sometimes this all sounds very theoretical but someone’s life could change in a split second, and one day you’re walking down the street and everything is normal and then the next minute because of a fall that happens in a blink of an eye, life has changed forever. A simple fall or an accident can result in broken bones or multiple surgeries.
Lee Sterry: And on the surface it might seem something simple as well, that is not necessarily simple in the long run.
Chris Richard: Absolutely, you know; there’s a trip hazard of a difference in a sidewalk, a sidewalk is heaved and there’s a trip ledge of an inch or two and you’re walking along, you’re looking ahead of you where you’re going and you don’t notice and you trip. Well the consequences… I mean, I’ve had a client who that’s happened to and they’ve missed two years of work. So, our negligence law is designed to make sure that if something like that happens, that lives aren’t ruined and there’s compensation available.
Lee Sterry: Right, so that’s the number one, the biggie.
Chris Richard: And that’s legitimate, ensuring that lives aren’t ruined is an important part of the law. Now the second thing that negligence law does is it regulates behaviour. It makes people act in a particular way. And that means it puts a duty on us to take care for the safety of others. So for example, if I’m the city and I’m responsible for maintaining a sidewalk, the fact that I can be sued means that I have to make sure that the sidewalk is safe. If I’m a home owner and we get an ice storm or a snow storm, I have to take some actions in order to remove the ice and the snow. Nobody likes to get sued and now the reality is it always looks like one individual is suing another individual; but, the reality we know in almost every case is that there’s an insurance company that is behind the scenes and an insurance company paying the damages. But still, nobody likes to be sued and it does cause us to take care for the safety of others. And that helps all of society, I know that sounds like–.
Lee Sterry: Yeah, it has kind of a corny ethereal quality to it but, when you look at it from, as they say, the thirty-thousand-foot view, that’s impartial of the overall impact.
Chris Richard: Yeah, but when you think about it in each of our lives, how many of us have had a conversation about safety? And saying, “I’m not sure, somebody could trip over that and we should move that item to somewhere else.”
Lee Sterry: Anybody who’s managed a business has.
Chris Richard: Absolutely, or volunteer organizations, those are conversations that in my personal life I tend to have that are completely removed from my professional life. And the reason we are having those conversations is because in the back of our minds we are thinking “we have this obligation to keep things safe.” And because of that all of us are safer. Because it is the law that enforces that mentality, we’re all safer. So both of those things, those are the two goals of negligence law, and I think they’re both quite important.
Lee Sterry: Let me ask you a question here and its something that we haven’t talked about before we came on the air, and you mentioned the city for example, looking after a sidewalk. One of the stories that became a recurring theme could be tobogganing at Fireman’s Park; it could be some sort of winter activity in any park in or around Niagara such as skating on a community pond, for example. You know, these kinds of things that we would have never thought anything of 10, 20, even five years ago. Over and over and over again we hear about things where, “well now they are going to be banning this there” or “the city is not going to allow people to do this here.” We realize that it’s probably because it’s a liability issue, but the public doesn’t necessarily receive it that way. So what’s your take on that?
Chris Richard: Sometimes it is over caution, right? For example, just to deal with some of those tobogganing issues. There is some specific law in the Occupier’s Liability Act that could protect a municipality for allowing tobogganing. But, if they’re taking advice from an insurance company, which they often are, they’re going to always act in what I would often consider to be an overly cautious manner and sometimes you can go too far in some of the things that we would consider normal parts of life, things could be adversely affected. But that’s not because of the operation of the law, that’s because of the operation of a business behind the scenes who is encouraging people to be ultra cautious. So sometimes that gets blamed on the law, but it’s not really the laws’ fault, it’s people behind the scenes.
Lee Sterry: Coming up, we are going to take a break in a few seconds. What are we going to talk about coming up? We are going to have a little bit of fun here I think.
Chris Richard: Yeah, I find that in my practice sometimes these negligence claims have been delegitimized and there are a number of cases that are sometimes held out to say “hey, negligence law has just gone overboard.” So in our second segment I want to talk about some of those cases and show how maybe things aren’t quite as we hear them on the radio or read in the newspaper.
Lee Sterry: Never on the radio, maybe in the newspaper, never on the radio. This is the VIP Late Lunch and Legal Matters with Chris Richard of Graves and Richard and it’s 1:14, we’ll be right back.
Lee Sterry: And again we are back with Chris Richard, and this is the Legal Matters program, we do it every Thursday at 1:00 here on the VIP Late Lunch and Chris, of course, is from Graves and Richard, Niagara’s largest personal injury law firm. We learn something new every week and we are talking negligence claims this week, and one of the upper-most negligence claims in all of our minds is the one that was publicised at such a great degree a number of years ago: the infamous McDonalds hot coffee case and — your eyes just started to roll – there’s a lot more to these things than what meets the eye.
Chris Richard: Any time I talk to somebody about negligence claims, invariably a few minutes into a conversation they say yeah, but these things have gone way out of hand, somebody got a million dollars for coffee being spilled on them. And it just shows you how pervasive these things can get in our heads. This coffee case, it happened in 1992.
Lee Sterry: I know it’s a long time ago.
Chris Richard: It’s almost 25 years ago, but I bet you the listeners out there — almost all of them — have some understanding or think they have some understanding of the facts of this case. But when we look at the actual facts of this case it’s actually an example of negligence law working correctly.
Lee Sterry: Instead, most of us think nuisance claims or that the U.S. is so litigious that every time you turn around someone is suing somebody.
Chris Richard: That’s right. And as I said that, probably all of your listeners out there, their eyes rolled back as I said it because they said what you are talking about: there is no way this actually is legitimate. So what I want to do is quickly go through the facts of that case because only partial facts have really been reported and what we all remember about it [may be different]. So it happened in 1992 and the plaintiff’s name was Stella Liebeck. It happened at a McDonald’s in Albuquerque, New Mexico and at the time Stella was 79 years old, she had gone through the drive-thru, she was driving with her grandson, and went through the drive-thru at McDonald’s. Her grandson was driving, and she got a coffee. After she got the coffee, her grandson parked the car so she could put some cream and sugar in her coffee. She puts the coffee between her legs so she could brace it and in the course of trying to put the cream and sugar in her coffee, she spills her coffee on her lap and her groin area.
Lee Sterry: And McDonald’s coffee that day was the hottest beverage I think on the planet.
Chris Richard: Yeah and well we will get to there in a second. But those are the typical facts that people hear, right? On those facts, who would hold McDonald’s responsible? I wouldn’t. If I heard those facts I’d think, well, she spilled the coffee, it’s her fault. But that’s not the end of the analysis of what happened. So, first off, as a result of the temperature of the coffee — we know exactly how much it was — as a result of the temperature, she sustained third degree burns to her legs and groin. She was hospitalized for eight days, she was required to get skin graph procedures on the burns, and in the end she required over two years of treatment in order to recover from this. So you say, how hot was the coffee? Well, we know how hot the coffee was because McDonald’s is a sophisticated corporation and they regulate it. So for safe hazard they have clear guidelines for how hot the hot was and at the time of this accident they were serving their coffee between 180 and 190 degrees Fahrenheit. I did a conversion on that, because I’m more comfortable with Celsius, so that’s between 82 and 88 degrees Celsius.
Lee Sterry: You can’t imagine, that’s like trying to imagine a billion dollars, and it’s hard to wrap your head around…
Chris Richard: It’s almost bubbling in the cup. So to compare and put in context, if you make coffee at home, if you’re using your Keurig or a coffee maker, at home that’s heating the water to about 135 to 140 degrees Fahrenheit which is 57 to 60 degrees Celsius.
Lee Sterry: That’s a huge difference.
Chris Richard: When you’re making coffee at home, if you spill it on yourself, it’s not likely to cause third degree burns.
Lee Sterry: But even at that temperature it is not comfortable.
Chris Richard: That’s right, I don’t know about you but when I first pour my coffee and I take my first sip, it’s quite hot at home, and imagine it that much more. Now, Ms. Liebeck, her lawyers at trial argued that had she known the coffee was this hot and this dangerous, she would have acted differently. She wouldn’t have put it in her lap in order to put the cream and sugar in; she had no idea that it could cause damage. She’s making the reasonable assumption that it would be kind of like the coffee at home. And if you spill your coffee at home, what’s the consequence? I stain my pants, or something to that effect and that’s the risk that she was accepting, not that she was going to need two years of medical care. Further evidence, McDonalds knew that it was causing injuries to it’s customers and did nothing about it. Between 1982 and 1992 McDonalds had documented more than seven hundred reports of significant burns caused by its coffee and didn’t reduce the temperature. Seven hundred people were burned by their coffee. Stella wasn’t trying to get rich off of this. When it first happened she just contacted McDonald’s and she said “I’ve got $11,000 in medical bills as a result of this. Can you pay my medical bills?” McDonald’s offered her $800. That is how the case ended up going to trial. Now the judge… it was decided by a jury but the judge commented on it that he found that McDonalds had displayed, and this is the quote, “attitudes of corporate indifference.” They knew there was problem and they decided to do nothing about it. So what did Stella receive? First, the jury found that McDonald’s was 80% responsible. But you know we deal with personal responsibility in these cases so they also found that the plaintiff was 20% responsible. She spilled the coffee so she should share some of the responsibility and that sounds like a responsible approach. That’s an approach we also take in Ontario. There’s always a sharing of responsibility and you look at what could the plaintiff have done to prevent the injury and what could the defendant have done to prevent the injury? She received compensation for her medical bills and her pain and suffering, in the amount of $160,000. So, her medical bills were about $11,000 and rest was for damages for pain and suffering. Now, the jury also wanted to punish McDonald’s for its conduct of knowingly serving coffee at such a temperature and knowing that it was injuring people.
Lee Sterry: So now it wasn’t about Stella anymore. It was about their corporate culture.
Chris Richard: That’s right, it was about McDonald’s, and it was about punishing them and sending a message saying, this isn’t right. So the jury awarded punitive damages. Those are punishment damages, and they awarded $2.7 million. You know how they came up with that number? That’s the revenue that McDonalds made from selling coffee for two days.
Lee Sterry: Wow… two point what?
Chris Richard: Two point seven million dollars.
Lee Sterry: Two days’ worth of coffee sales?
Chris Richard: Two days’ worth of coffee sales.
Lee Sterry: And they weren’t even known for their coffee back in those days… but they are today.
Chris Richard: Now, interestingly, Ms. Liebeck didn’t receive that amount. This of course is never reported, but the truth is the trial judge reduced the punitive damage reward to $480,000. So if we look at that, that’s less than half a day’s revenue for coffee. And again this isn’t meant to compensate Ms. Liebeck but it’s to send a message and it’s to punish McDonalds. So the total that she was awarded was $640,000. Nowhere near a million dollars, which is what we all referenced this case and much of that was designed to send a message and to get McDonald’s to change their practice. Interestingly, McDonalds appealed this case and it was ultimately settled. What I assume from that is that in fact the settlement was for less than $640,000. So it’s interesting when you go through the facts.
Lee Sterry: It wasn’t a nuisance suit. It wasn’t a trivial thing, it was an important thing.
Chris Richard: No, and this was a jury of the United States that heard all of the evidence and then said, “McDonald’s acted improperly here.” And on those facts, I agree with them. That that doesn’t sound like appropriate conduct when you’ve got over seven hundred people being burned because you’re serving your coffee that hot.
Lee Sterry: So, on the couple of minutes that we have left on the program today, what are our takeaways from this, as citizens?
Chris Richard: As citizens I think we need to keep an open mind. And the reason for negligence law is to keep all of us safe. So when we hear facts of a case that we might think off the top of our head is a little bizarre or doesn’t make sense [we should remember that].
Lee Sterry: Because we laugh at these all the time.
Chris Richard: But keep in mind that this case was heard in a court room, it was presented to a jury of at least six people, and in the U.S. sometimes it’s even more. And those six people heard all the facts, not just a snip, and they decided that the defendant did something wrong and that the plaintiff needed to be compensated. And juries don’t compensate people for frivolous things, juries are pretty smart and if something is frivolous they don’t have a lot of time for it. But I find with these cases they are kind of closing minds a little bit. So that even when we have a jury here in Ontario, you know they are thinking about the McDonald’s case and they’re thinking that it’s illegitimate and that’s not good for any of us. We need to have an open mind, listen to the evidence and then make a decision.
Lee Sterry: Interesting conversation. So it’s not like somebody just wakes up in the morning, stubs their toe and says, “I’m going to sue.” You know there’s a lot more behind it than that.
Chris Richard: I don’t know a lawyer who would take that case.
Lee Sterry: Thank you very much Chris. Chris Richard from Graves and Richard. This has been Legal Matters and we will come back and do it all again next Thursday at one o’clock, we always learn something.