Category: Personal Injury

The McDonald’s Coffee Burn Lawsuit

Personal Injury

This is a Test. Before you read further, I want you to set aside your computer and spend a few minutes thinking about your understanding of the famous McDonald’s Coffee Burn Case. Try to recall the facts and the results of this case. After you have spent a few minutes recalling this case, read the following information about the ACTUAL case. And let us know if these facts surprise you, are what you remember or otherwise.

The McDonald’s Case.

Do we need to say more? You may agree, you may disagree, but it is a fairly safe bet that you have an opinion about the McDonald’s Coffee Burn case. But how well do you remember the Liebeck vs. McDonald’s case from 1994?

Stella Liebeck, age 79,purchased coffee at a McDonald’s drive-through window in New Mexico. And she was severely burned as the styrofoam cup of coffee fell into her lap. She was a passenger in her grandson’s vehicle, and he had stopped the car so that his grandmother, who put the cup between her knees, could open the lid to add her milk and sugar. As part of this process, she was burned when the coffee came in contact with her skin.

The coffee was so incredibly hot that third degree burns scalded Ms. Liebeck’s skin and destroyed nerve endings. She was hospitalized for almost eight days and required skin grafting. Prior to hiring a lawyer, she asked McDonald’s to merely cover her medical expenses of approximately $20,000, but they offered her $800. Ms. Liebeck hired a lawyer and filed a products-liability lawsuit, essentially alleging that McDonald’s was serving a defective product to customers.

Evidence presented to the Court showed that the coffee served Ms. Liebeck was between 180 and 190 degrees. Normal standards for hot coffee are between 135 and 140 degrees. In addition, it was discovered that McDonald’s had received more than 700 complaints of coffee burns prior to the one from Ms. Liebeck, and yet they refused to correct the problem.

The New Mexico jury took action where McDonald’s refused. They found Ms. Liebeck’s compensatory damages to be $200,000 (meaning damages compensating Ms. Liebeck for her losses). In addition, they awarded punitive damages o f$2.7 million finding that McDonald’s engaged in willful, reckless business practices. This figure was reached because it was the equivalent of approximately two days of McDonald’s coffee sales. What was not widely reported, however, was that the punitive award was reduced on appeal, that the jury also found Ms. Liebeck at partial fault, and reduced her compensatory damages to $160,000,and that later an undisclosed settlement was reached for what most people believe to be under $500,000.

Whether you agree or disagree with the outcome of this case, be sure that you know the facts before reaching your conclusion.

Contributory Negligence Fails in the Senate

Personal Injury

The Contributory Negligence bill that was highly endorsed as a positive move for North Carolina citizens has failed in our Senate. Because of another bill that was attached to it, the unfair practice of contributory negligence will unfortunately continue.

NC is one of only four (count ’em FOUR) states in the country where a person is not entitled to any compensation as a result of an accident if he/she is 1% or more at fault. (See my earlier blog posts.) This helps insurance companies to deny and undervalue claims that should be paid. Proponents of a more fair and even-handed system have advocated for a proportionate responsibility law. In other words, if a person is somewhat at fault in a personal injury case, the responsibility for the accident should be divided as necessary based on the involvement and negligence of each participant.

The House of Representatives passed the initial bill that would have abolished Contributory Negligence and replaced it with Comparative Fault, but the Senate rejected it last year. A Senate sub-committee added a section to the bill to change how the value of medical expenses would be considered by a judge or jury. Currently, the medical bill from the treating facility is deemed to be the reasonable value of the services rendered. The change would have allowed judges and juries to use the amount actually “paid” as the value of services. This farce fails to recognize that the reduction of medical bills often reflects costs to an injury victim for having collateral sources of coverage. North Carolina public policy has historically refused to reward a negligent party for the victim’s responsibility. Fortunately, the legislature avoided falling prey to this “sleight of hand” tactic and declined to change this medical bill law. But in the process, they threw out the baby with the bathwater, and we lost our bid to rid the state of contributory negligence. Ironically, very little attention was given to the concern that maybe our medical institutions are the real culprits for creating unrealistic bills. Clearly, a “truth in medical billing practices” law would go a lot further in resolving this issue and fairly treating North Carolina citizens.

This article was written by Todd P. Oxner

Injury from Animals

Personal Injury

You’ve been attacked by a dog and have suffered injuries. Can you recover the cost of medical treatment from the dog’s owner?

Maybe. Not every dog bite injury gives rise to a claim under North Carolina law. A careful review of the facts must be done. In cases we’ve handled, we have even been successful in making claims against landlords who were aware of the danger on their property.

Factors to be determined include whether or not the dog has been known to show aggressive behavior in the past, a history of prior problems between the animal and other people and the existence of a record with animal control or the police. The dog does not necessarily need to have bitten anyone in the past in order to be considered aggressive. Prior occasions of acting “in a terrorizing manner” with other people qualify.

When there is a history of problems with a particular dog, the owner is on notice of the danger and is obligated to control the animal. According to North Carolina law, it is unlawful and negligent for a dog’s owner to allow a dangerous animal to be kept outside without any type of leash or muzzle restraint.

If you are the victim of a dog attack, you should document the facts and history of the dog’s conduct through witness statement(s) and report your incident to the local police. Of course, get appropriate medical treatment and take photographs of the scene, of the dog and of your injuries. Pictures of your injuries allow people to see how the dog caused harm to your body. Attacks by dogs can result in the victim being severely hurt, permanently disfigured or even killed.

North Carolina statutes do not identify dangerous dog breeds, but many insurance companies do — some of them won’t even allow policies to homeowners or renters who own certain dog breeds. In addition, the owner of a dangerous dog that causes injury can be charged with a misdemeanor and be criminally liable for injuries and property damage that the animal causes.

We can go over your dog bite injury incident with you and let you know if we think you have a strong case.

What is Your Health Insurance Worth to Negligent Drivers?

Personal Injury

The NC General Assembly has done it this time. Under the guise of “reform,” House Bill 542 has passed, and it gives a bailout to auto insurance companies and their negligent drivers. Safe drivers are the losers.

If you’re involved in a traffic accident, the NC General Assembly has changed long-standing NC law to allow negligent drivers to benefit from their victims’ coverage. This is how the sleight of hand works: a negligent driver spends all night drinking at his local establishment. He decides to drive and hits you with his vehicle, causing you injury. But he no longer has to be responsible for your medical bills. He would continue to be responsible for what a provider is paid, but the negligent driver gets to benefit from YOUR insurance by not paying the full medical bill — your coverage now bails him out of complete responsibility.

Is this what the NC legislative leadership considers reform? Apparently so. In a not-so-veiled attempt to stick it to personal injury lawyers, the new law continues a trend in our state toward limiting NC citizens access to the court system. And this really harms one group — injury victims. Injury victims already have so many challenges to take their case before a jury: the cost of litigation (when you have lost so much already), the poisoning of jury pools by inaccurate perception of “frivolous” lawsuits and the attribution that our economic suffering is due to needless business expenses dedicated to defending excessive litigation. In fact, your attorney cannot even ask about the defendant’s automobile insurance policy when the case goes to trial because the defenders of insurance companies have persuaded NC legislators that such knowledge in the hands of a jury would be unfair to negligent drivers.

Do you see why this recent legislation is a further blow to good, law-abiding citizens of North Carolina and a lobbying win only for big insurance companies? If you have health insurance or coverage of any nature, the defendant cannot be made to pay you any of the money or benefit that you receive through your health care plan.

Let your representative know that you are saddened by their choice of big business insurance — over your safety. Click on the bill to view its contents: SB542, SB586 (new effective date).

This article was written by Todd P. Oxner

Guess Who Benefits from Medical Malpractice Reform

Personal Injury

Governor Perdue vetoed it, but the NC House overturned it. Senate Bill 33 has passed. (You can read the bill in full here.) Many times in a case involving a client who was the victim of medical malpractice, we have called into court records the testimony of an expert in the field. While this professional was not directly involved in the incident, he or she knows the Standards of Practice that medical workers in that industry must work within. But now the Standards of Practice have been lowered — there are changes in the levels of misconduct and intent required to prove negligence. And the expert testimony can only be based on evidence and information in the actual case at hand — there can be no reference to other occurrences or hypothetical situations.

Here’s another part of the “reform” bill — the maximum amount of money recovered for non-economic damages has been set at $250,000. That’s a lifetime maximum of a quarter million dollars but what’s the price to pay for causing pain, suffering, stress and physical impairment to a person? Economic damages such as a loss of income or medical charges are simple to pinpoint, based on past history and dollar amounts. But now there’s a cap on the price to be paid for pain.

One other change that the bill invokes is for judges to determine if the payment of an award is to be completed in one lump sum or if it can be paid to the defendant in periodic payments. Medical malpractice victims may now receive their award amounts on a payment plan — in installments. It’s as though they had received their emotional stress and pain only in installments. Ridiculous doesn’t even cover it.

Surely only the medical industry benefits from these changes in malpractice liability and award payments.

This article was written by Chip Permar