Newnan Pratlaw's Posts On Hot Legal Topics

February 24, 2010

AN OLD POSTING I ALWAYS WANTED TO HAVE REFERENCED

People Made Jokes About This?

THE MCDONALDS’ SCALDING COFFEE CASE||

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat ofher grandson’s car when she was severely burned by McDonalds’ coffee inFebruary 1992.  Liebeck, 79 at the time, ordered coffee that was servedin a styrofoam cup at the drivethrough window of a local McDonalds.

After receiving the order, the grandson pulled his car forward andstopped momentarily so that Liebeck could add cream and sugar to hercoffee. (Critics of civil justice, who have pounced on this case, oftencharge that Liebeck was driving the car or that the vehicle was inmotion when she spilled the coffee; neither is true.)  Liebeck placedthe cup between her knees and attempted to remove the plastic lid fromthe cup. As she removed the lid, the entire contents of the cup spilledinto her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused. During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds’ knowledge about the extent and nature of this hazard. McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees. Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee. Plaintiffs’ expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn. McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer thirddegree burns from the coffee and that a statement on the side of the cup was not a “warning” but a “reminder” since the location of the writing would not warn customers of the hazard. The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales. Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit. The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful. No one will ever know the final ending to this case. The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned. —– excerpted from ATLA fact sheet. © 1995

February 22, 2010

A Familiar Ring||Toyota saved 100 million at whose expense

Is This The New Toyota?

For those of us old enough to remember, Ford internal documents said that Ford could save millions at the cost of only a few burned alive deaths.  Now Toyota documents show they saved 100 million by risking only a few deaths by sudden acceleration?  Of course  Ecclesiastes is true and tells us there really is absolutely nothing new under the sun, over and over again.  || ARTICLE ||

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February 18, 2010

DO NOT MARK ON DOCUMENTARY EVIDENCE||Make a copy and mark that up…

…when it comes to documents.
Over the past 23 years I have come to appreciate the fact that Judges as a whole do not like being given documents with highlighted passages or handwritten notes beside the part of the document you think is important.  Doing that is really close to a demand that the Court become a participant in the blind men and the elephant philosophical exercise about the scope of perception:  ||FABLE||  … and they do not like the ||SOCRATIC METHOD|| to the extreme of banality, i.e., rain is rain you cannot assert you do not understand it until someone explains it to you and you “feel” it.  What all this means in plain English is:  (a)  The Judge controls his or her court room and no one else has any right to control it.  So make a copy of any document you feel the urge to write on, so your lawyer can present the ‘clean’ one to the Judge and draw the Judge’s attention to the passage you have highlighted in your ‘dirty’ copy by asking the Court’s permission to draw its attention to that passage; (b) A testifier’s inability to grasp easy questions and evasive answers soon turns a Judge off [and a Jury Too].  Do not engage in ||TABULA RASA|| Socratic Responses [inane question answers to straightforward questions], and; always remember: Neither Judge nor Jury need to be hit over the head with information they can clearly see or hear.  They really can be trusted to figure it out.

..when it comes to documents.
Over the past 23 years I have come to appreciate the fact that Judges as a whole do not like being given documents with highlighted passages or handwritten notes beside the part of the document you think is important.  Doing that is really close to a demand that the Court become a participant in the blind men and the elephant philosophical exercise about the scope of perception:  <a href=”http://en.wikisource.org/wiki/The_Blindmen_and_the_Elephant”>The Blind Men And The Elephant Fable</a> and they do not like the <a href=”http://en.wikipedia.org/wiki/Socratic_method”>Socratic Method</a> to the extreme of banality, i.e., rain is rain you cannot assert you do not understand it until someone explains it to you and you “feel” it.  What all this means in plain English is:  (a)  The Judge controls his or her court room and no one else has any right to control it.  So make a copy of any document you feel the urge to write on, so your lawyer can present the ‘clean’ one to the Judge and draw the Judge’s attention to the passage you have highlighted in your ‘dirty’ copy by asking the Court’s permission to draw its attention to that passage; (b) A testifier’s inability to grasp easy questions and evasive answers soon turns a Judge off [and a Jury Too].  Do not engage in <a href=”http://en.wikipedia.org/wiki/Tabula_rasa”>Tabula Rasa</a> Socratic Responses [inane question answers to straightforward questions], and; always remember: Neither Judge nor Jury need to be hit over the head with information they can clearly see or hear.  They really can be trusted to figure it out.

February 17, 2010

Newnan Pratlaw Essay: The Tradegy of the Olympic Luger and Liability Questions

The tragic death at the 2010 Olympic Games highlights and illustrates two of the primary legal issues involved when a person is hurt or killed on the property of another.  They are the legal doctrines of: (1) Superior Knowledge of a Dangerous Instrumentality versus equal knowledge of it, and; (2) Assumption of Risk.  The young Luger’s story is discussed in this recent article discussing the two issues surrounding whether anyone other than the deceased is responsible for his death.  ||ARTICLE||

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February 15, 2010

FRAUD AND BANK FAILURE(S)

What Happened To That Trillion Dollars?

Fraud or Misrepresentation must be specifically plead to the requirements: (1) material representation that is not true; (2) reasonable reliance on that misrepresentation; (3) injury in the form of financial injury [damages] from the reasonable reliance.  Fraud can be shown by slight circumstances which taken as a whole show a scheme.  The Securities And Exchange Commission is using the Cause of Action against Madoff associates [LINK] and of course I post it here because the COA might possibly apply to a broad range of investment and business deals gone bad.

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February 12, 2010

A DAY LATE AND A DOLLAR SHORT

Filed under: Uncategorized — thebigpraetor @ 12:50 pm

Could it get any better?

Of course I voted for him the last time, how could anybody have voted for the other candidate who would not divulge where he stood on a single issue?  But this legislation is almost 2 years late:  HELPING LOCAL BANKS !  And GA is way behind a number of other locations [read: Charlotte and SC] in the southeast in terms of our being a Global Financial, Manufacturing and Distribution Hub.  Eight years after a personable country vet won over voters because  “Arrogant Roy”  changed the flag and drug local school boards out of the fifties by ‘de-fifing’ their power, GA has not made a step toward modernizing itself as a progressive World Financial, Industrial, Distribution Center.  GA has not even started looking into the viability of high speed trains between Macon, Columbus, Valdosta, Rome, Augusta and Atlanta even though we got a million dollar grant to do just that?  Not even going to think about it?  What we do have is this great photo of our leader ‘grinning like he just like he is listening to the song “let the good times roll’.    And this year GA got “super speeder fines”; WOW what progress?

JMHO:  We/GA have regressed toward Mississippi and Alabama while the Carolinas have progressed toward dominating the southeastern United States in every phase of the economy.  I for one hope the two parties give us two good candidates to choose our next Governor.  Our Governor has got to get global in his or her thinking.  “cyphering the books” won’t cut it in the modern world.

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The Problem I Have With Republicans Is I Can’t Find One

Filed under: Uncategorized — thebigpraetor @ 7:41 am

Everett Dirksen

Ever since the first George Bush decided that populism in the form of morality had a place in the Republican Party I have been an independent voting for as many democrats as I have republicans.  I grew up for whatever reason watching Meet The Press on many a Sunday morning and of course gravitated to the humorous gravel voiced Everett Dirksen who I remember seeing several times and proclaimed myself a Republican early on because I was against big government:  as I have always said I want any politician who has some power over my life to live, if not down the street, at least across town… Here are some of my favorite politician’s most famous quotes.  After reading them see if you can find a Republican politician that even remotely resembles the composite the quotes put together: QUOTES

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IN THE US AN INDIVIDUAL CAN STAND AGAINST POWER

Filed under: Uncategorized — thebigpraetor @ 7:23 am

Rage Against The Machine?

It is getting as rare as an extinct bird siting but occasionally one does hear of  a case where an individual stands against the government and wins.  Almost all these rare “sitings” are in the judicial arena now.  In Connecticut this week a woman whose business was ruined by the State apparently for no good reason was awarded an amount which might restore her to where she was but of course the Government is going to appeal it into the ground.  Let’s hope Justice prevails.  Here is the link: COMPUTERS

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February 8, 2010

“THE BEST MONEY EVER SPENT”

Even Concrete Is Transient

As a kid I loved the book, The Count of Monte Christo, especially the elaborate revenge the main character plotted against the people that had wronged him.  He spared no cost in plotting and carrying out the series of events that led to serendipity and his revenge against the horrible people who had falsely imprisoned him.  They could not help themselves because they were without a conscience.   To him it was the best money he had ever spent.

Is there an amount that is too much to spend for happiness?   Getting out of a relationship that has become cracked concrete, even when there is a child or children involved is sometimes the only course to take to get back into a world of bright colors, singing and happiness. Consider this:  The Oriental concept of Feng Shui which is the study and perhaps science of balancing life and its energy should be considered when life is skewed and in need of correction.  That concept, however, is always at odds with the acceptance of the transient nature of our own mortality and the understanding that life can never be perfect; that acceptance/understanding is called Wabi Sabi in the orient.

The two concepts, Perfect Harmony and Acceptance of Transience,  converge in balance at the fulcrum of  happiness.  It is the state of happiness where we want our children to be and to grow and learn.  It is the preface to the Constitution:  Life, Liberty, The Pursuit of Happiness.   Children are innately happy and want to be happy.  In my experience training horses I find that children/human beings in general have a lot in common with horses.   Like horses, children have the ability to see the slightest gesture at a hundred yards and the almost silent tonal inflection in the way something is said which changes its entire meaning.  Children are ultimately egocentric in their outlook and that is not only a given but a must for them to become independent and “leave the nest” as late teenagers.  That egocentricity can translate into worry over what they did in playing a part in the ending of their parents marriage; but that worry is easily calmed by simply and definitively telling them that they had absolutely nothing to do with the divorce and that after the divorce they will be happier …  and besides they will get two Christmases/ Hanukkahs , two birthdays,  etcetera.

The ending of a failed brittle relationship that is no longer anything more than a constant reminder to everyone hovered around the scene  and children in the middle of it that they never, ever, under any circumstances ever want an adult relationship like it because such a relationship is misery personified.  Getting out of the concrete can be nothing less than money well spent:  And with a little counseling and life coaching one can regain who you were before the failed relationship and go forth pursuing happiness with all your might, a spectacle that your children will learn from as they mature into adulthood.  It just could be the best money you ever spent.

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January 30, 2010

INJURY CASES ALWAYS INVOLVE PHYSICS

||| PRATLAW ON INJURIES |||

Physics in an ancient child's game illustrates the transference of energy

In a high speed vehicle collision, defined as a collision in excess of 7 miles per hour, a common personal injury that will occur is whiplash. It is the simple physics phenomenon in the old child’s game ‘Snap The Whip’ seen in the above pastoral painting WITH ONE MAJOR DIFFERENCE: THE MILES PER HOUR OF THE ENERGY TRANSFER!

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