The Conference Room--Answers to Questions on N.C. Law

My Not-So-Hero, Zero

There has b
een a lot of justifiable backlash over “zero tolerance” policies for weapons at schools. The tale of the cub scout proud of his pocket knife with fork and spoon has prompted many people to cry out “where is the common sense of these school officials?” My practice really isn’t geared to this type of litigation (although I know attorneys who do) but I’d like to make the connection between these zero tolerance policies and some types of tort reform.

Zero tolerance for weapons in schools sounds like a great idea. Don’t let anybody wiggle out of the rule because of their race, wealth, Mom is the principal, or anything else. In practice though it requires a third-grader to be suspended because her grandmother sent a birthday cake to school, and a knife to cut the cake for the teacher. With zero tolerance, there is no room for common sense. It is a robotic and undemocratic rule of law.

Caps on medical malpractice damages or pain and suffering damages is also a form of this zero tolerance. The jury system allows ordinary citizens to come and decide after a judge explains the law, what the facts are of a case. Part of the facts is what actual damages does this person show? Sometimes, if they find maliciousness, they can also answer, what amount would punish this person or corporation enough that they won’t do it again? (punitive damages) Then the judge, after his ruling, can apply his own common sense and order a new trial if the jury’s verdict are far out of line with what the facts are that were presented. A cap on damages is a state legislature deciding, without hearing any facts of a case, and possibly years before the case even occurs, that some amount of money is too much, even if a jury and judge who hear the actual evidence and circumstances think otherwise. A unanimous jury verdict is the purest form of democracy that any of us will experience. An inflexible cap or rule, is the opposite.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

I ran out of gas. I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN'T MY FAULT!

The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act   This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people.  What the bill does is modify the rule of Contributory Negligence.

Contributory Negligence is a defense in a negligence action.  The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  A person's failure to use ordinary care is negligence.  For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent.  If you hit somebody because of that, they would have a negligence action against you.

Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover.  So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything. 

Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover.  This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat.  In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down. 

All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.”  This is what the new bill being debated will do if passed.  Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault.  So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900.  Under the current law, she would get $0.  So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

Myth v. Reality in the McDonald's Coffee Cup Case

 

After my last post and the video that followed, I got a few follow-up responses about the infamous “McDonald’s coffee” case that the video touched on.  I thought I’d give you a little bit more of the facts:

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonald's coffee in February 1992.  Liebeck ordered coffee that was served in a styrofoam cup at the drive-through window of a local McDonald's.  After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into 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, 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 McDonald's refused.

During discovery, McDonald's 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 Liebeck's. This history documented McDonald's knowledge about the extent and nature of this hazard.

McDonald's also said during discovery that, based on a consultant's 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, McDonald's 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 McDonald's 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 McDonald's had no intention of reducing the "holding temperature" of its coffee.

Plaintiff's expert, a scholar in thermodynamics as 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.

McDonald's asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company's own research showed that customers intend to consume the coffee immediately while driving. McDonald's 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 third-degree 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 McDonald's coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonald's 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 McDonald's conduct reckless, callous and willful.   (excerpted from “Commercial Litigation Section Newsletter,” American Association for Justice Vol.II, No.1, Fall 1997). 

These are the facts the judge and jury heard in rendering their decision.  I’m sure that they would have found differently if all their information came from Jay Leno, but luckily we don’t try cases on “The Tonight Show.” 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.    

You are the Brakes on a Runaway Jury

I wrote earlier about medical malpractice cases in North Carolina and why they are so difficult to start and win.  Briefly, there are special procedures in North Carolina to make sure that medical malpractice cases that are brought in the courts have merit.  Aside from those special restrictions, in every civil case in North Carolina, there are several brakes on frivolous lawsuits and runaway juries.  A North Carolina judge in every case in North Carolina has several opportunities through motions to dismiss, motions for summary judgment, and motions for directed verdict, to totally end a “frivolous” lawsuit before a jury decides.  In addition, the judge can even impose sanctions on a party or an attorney who brings a lawsuit without merit. 

 

Aside from the legal professionals, a jury of normal people, chosen by both sides of a lawsuit, hear the relevant facts and rule not only for who is at fault, but how much damages they should get based on the law the judge gives them.  It takes the unanimous consent of 12 people to award both liability and damages.   Think about that.  Get 12 of your friends together to go to lunch and propose some ridiculous extreme lunch idea, like “let’s drive to Raleighand eat at the McDonalds in the RDU airport!”  Do you think you could get all 12 of them to agree?  In a lot of jury deliberations, one or two jurors may want to give a claimant a large amount of money that is close to or outside the most the evidence would suggest, and others may decide that the same claimant get much less than the evidence shows.  What usually happens is the jury comes to a compromise number that is reasonable. 

 

On the rare occasions when they don’t, the judge has yet another opportunity to put the case back on a reasonable road.  He can render a judgment notwithstanding the verdict, or a new trial for an excessive verdict.  Then there is the appeals level, another opportunity for a case to be tossed out and sanctions awarded. 

 

What “tort reform” usually means is politicians in Raleigh decide that no matter what the facts of a case or the law of a case say, somebody’s damages are limited to an arbitrary amount.  With that, they are saying that YOU and your neighbor are not smart enough to listen to a judge, decide what the facts of a case say about how much a claimant should receive, and argue against anybody who is unreasonable, and that locally elected judges are not smart enough to stop a jury if it gets out of control. 

 

Below is a nice video that shows that the system works.  It briefly addresses the famous “McDonald’s coffee cup case” and shows how, once people hear some of the facts that the jury heard, they change their minds, and the “fancy pants” case about the judge who sued the dry-cleaners.  Everybody knows that the case was frivolous, but nobody seems to know that the system took care of it without any additional help from the state government. 

 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.