Recent Articles

  • More Ridiculous Than Suing McDonald’s For Spilt Coffee

    You have probably heard the claim that people sue too much today. A previous entry, How Torts Protect Us, discussed how bringing lawsuits can actually provide protection for us and others. So before jumping on the bandwagon complaining about a sue-happy society, consider the benefits you gain from lawsuits you or others bring. This article will address a related complaint: not only do people bring lawsuits too often, but the lawsuits are brought over any frivolous thing. It seems the example most often cited as support for this argument is the infamous McDonald’s coffee case.

    You’ve heard about this one, right? Perhaps you’ve only caught the general gist of the case, and you’re understanding is something like this: some lady sued McDonald’s because she burned herself with its coffee. “Ridiculous,” you may have thought to yourself when you first heard about it, and now, whenever it’s brought up again, you roll your eyes and mutter, “Unbelievable.”

    That’s certainly how most seem to react in response to this case. I’ll admit that I once acted the same way myself. But then one day a professor assigned us to read the case and its history, and suddenly, the case that seemed to symbolize how lawsuits were out of control in America exemplified the ability of lawsuits to protect the vulnerable from being collateral costs of the powerful and wealthy.

    So here are the facts: Seventy-nine year old Stella Liebeck was riding in the passenger seat of her grandson’s car when they stopped for coffee at a McDonald’s. After getting the coffee at the drive-thru window, her grandson pulled over and stopped the car. Stella placed her coffee cup between her knees and attempted to take off the lid. In doing so, the coffee inside spilled all over her. The sweat pants she was wearing at the time soaked up the scalding liquid and held it compressed to her skin. At the hospital, examinations showed that she had third degree burns on six-percent of her body including her thighs, groin, and buttocks.

    After the incident, Ms. Liebeck sought only $20,000 from McDonald’s, half of which was to cover $11,000 in medical expenses she incurred. McDonald’s, however, refused and offered only $800, so the case proceeded to trial. Through discovery and the trial, evidence was brought forward that showed that over 700 people had been burned by McDonald’s coffee. McDonald’s, it was shown, was aware of those incidences and also aware of the fact that the severity of burns was exacerbated by the requirement McDonald’s placed on its restaurant chains to maintain the coffee’s temperature between 180 – 190° F. McDonald’s demanded such a high temperature because it claimed that customers preferred the coffee that hot; to McDonald’s, the burns that resulted were just costs that were outweighed by the benefit of selling more coffee.

    Learning the facts changed the minds of the individuals of the jurors, who went from originally feeling like they were wasting their time  to coming forward with a verdict in favor of Ms. Liebeck for $200,000 in special damages and $2.7 million–the amount McDonald’s made on two days of coffee sales at the time–in punitive damages.  This result helped McDonald’s take responsibility for its actions, and change its practices, which likely saved several more people from being similarly injured.

    After learning the facts of the case, don’t you feel more sympathetic and understanding as well? Lawsuits like Ms. Liebeck’s provide a mechanism for people to avoid being a collateral cost of doing business, another small line item in a company’s cost and benefit analysis. Ms. Liebeck used a lawsuit to hold a company responsible when it was causing harm to some people in order to make a higher profit. Lawsuits like hers help people force other individuals and businesses to consider and respect the wellbeing of those they claim to serve. And once we’ve actually learned about the case, we see that a cavalier dismissal of cases before listening to the facts with an open mind is much more ridiculous than suing McDonald’s for getting burned by its coffee.
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  • How Torts Protect Us

    To anyone familiar with law terminology, protection through torts may seem like a contradictory phrase, maybe a bit of an oxymoron. Isn’t a tort, after all, a cause of action (or, in other words, a lawsuit) that arises from some type of wrongdoing? How then, you may ask, can suffering some kind of wrong serve as a protection?

    Before getting to that answer, a further brief introduction or review of the terms may be helpful. When someone is harmed, there are generally two types of charges that can be brought against the wrongdoer: criminal charges or civil charges. The criminal charges that are brought are left up to the determination of government officials, generally prosecutors. The civil charges, however, are charges that can be brought by one individual or company—the victim—against another individual or company—the “tortfeasor” (the individual that committed the tort). For example, if while driving, you are rear-ended and injured by another driver who was fiddling with the radio or texting, you very likely have a cause of action, as the victim of a tort, against the other driver, the tortfeasor.

    So again the question, how does suffering a wrong provide protection? The answer is incentive: lawsuits provide incentive for people performing actions around us to do them in an appropriate manner. Granted, in an ideal world, people would always perform their actions in a reasonable manner because of the care and respect they feel for others. But in reality, the desire to avoid punishment is often the factor that drives people or businesses to this level of reasonableness. When they fail to be reasonable, tort cases are the mechanism available for holding them responsible for their misconduct.

    Think, for instance, of the last time you were driving through a construction zone on a highway. Construction zones, which are especially common in the summertime, are dangerous because of the way they change the layout of the road and the otherwise predictable flow of traffic. As a driver traversing the zone, you are not familiar with how the lanes have been changed. Sometimes two lanes of traffic are narrowed into one. Sometimes lanes are shifted over entirely.  Whatever the change, you need to be warned that conditions are different. While it would surely be cheaper to forego warning signs, cones, or other caution devices, a construction company that fails to provide sufficient warning could be liable to commuters that are injured while driving through the zone. This potential liability incentivizes companies to provide adequate warning to ensure the safety of drivers and others; in other words, the companies’ awareness of possible tort claims that could be brought against them provides protection. Generalizing the principle from the example, torts give people or companies incentive to stop and consider how their actions or lack of action will affect others.

    With this realization in mind, consider the numerous things you do in the day that are made safer because businesses and individuals know that they may be held liable for failing to act reasonably. Our cars don’t fall apart as we drive them. Buildings don’t collapse as we enter them. Foods don’t poison us when we eat them. Dog owners don’t allow their dogs to run around biting neighborhood children. If you take time to think about it during the day, you will notice many things that you can do without being harmed because the law of torts has provided incentive to ensure such things are done according to an appropriate standard. Whenever such standards of reasonableness fail to be met, torts provide the means for demanding responsibility and providing protection for yourself and others.  Contact us today to discuss your case.
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  • Proactive Business Leaders NOT Reactive Business Meanderers

    There are many great leaders in the world.  Perhaps you are one of them.  Leaders like you possess many varying qualities that make them great leaders, but one characteristic that is common among great leaders is their ability to be proactive.  To better understand the ability to be proactive we must determine what it means to be proactive versus being reactive.  A reactive person is one whose agenda and actions are dictated by the events immediately facing them.  These reactive people would often be labeled procrastinators or lacking initiative because they do not generally act until they are acted upon.  Proactive leaders, on the other hand, dictate the actions and control the surrounding events.

    How can we become more effective proactive leaders?

    Surfing and Proactive Leadership

    A great analogy to illustrate the points of a proactive leader can be found in surfing.  The coastal waters are often ripe with surfers on their boards in the summer months.  As you watch them, you will see a number of beginning boarders getting smashed by waves, missing waves and being pushed into the rocks.  You will also see those who seem to effortlessly catch each wave and ride the wave in to shore.  What makes the difference?  Is it strength?  Is it skill?  Is it experience?  It may be a result of those characteristics, but it is likely a result of the ability to be proactive.  I had the experience of surfing for the first time last summer, so let me explain how I tried to take a proactive approach to surfing.

    I watched the surfers in the water and noticed many getting pushed into the rocks, many who were unable to actually catch a wave and others who were simply smashed by the waves.  As I started, I recognized that I needed to draw on the experience of those who knew the trade.  I began asking questions of those who I could see knew how to surf.  I was shown where to position my board, which waves to try to catch, when to paddle away, which waves to avoid and when to begin paddling.  Drawing on this knowledge, I was able to plan.  I could position myself in a safe location that would put me in a place to catch the waves.  I would then listen to those who recognized the good waves, and I would paddle when they told me to paddle.  This allowed me not to paddle too soon and miss the wave, or paddle to late and get smashed by the wave.  Soon I found myself being taken by the waves and feeling like I was walking on water.  To actually stand and ride the waves in to shore I had to focus on my positioning on the board, timing of when to stand and balancing once I was up.  Listening to the advice of those who knew helped me to avoid being smashed into the rocks or churned by the waves by allowing me to act proactively.

    Breaking Down The Points

    First, we need to do the necessary homework.  We need to have the basic skill set and understand what will be required in the moment of action.  As the scripture says, “if ye are prepared ye shall not fear.”  Going fearfully through life would be a miserable existence.  If we do not understand the unknown, we should surround ourselves with those who have the expertise in that area, so that we do not have to fear.  Those who are wise enough to draw on the wisdom of others will not have need to fear because they will be well advised.

    Second, we need to plan.  Effective planning includes anticipating and thinking of possible scenarios that will confront us in the near and foreseeable future, and planning ways to meet those scenarios.  Proactive leaders have an ability to see patterns or trends, or they have been advised of patterns or trends, and they plan ways to meet the likely scenarios.  Proactive leaders are actually reactive they just possess more foresight than those people labeled reactive.  Proactive people are reactive to what they believe will happen.  An event or scenario has already played itself out, or at least the possibility of the scenario has played itself out, in the proactive leader’s mind before the event actually takes place.  This ability to plan and think ahead makes the leader’s action appear proactive.

    Finally, we need to stay focused.  Proactive leaders are focused on obtaining an end goal, and they continue the required maintenance to achieve that goal.  If we lose sight of the end goal, then it is easy to get blown off course or settle for mediocrity.  Reactive meanderers are content with mediocrity, but proactive leaders are always searching for ways to better themselves.  By bettering themselves, proactive leaders recognize that they are laying the groundwork for their continued success, and ability to avoid fear because they are prepared.

    Conclusion

    At Hinkins Law, LLC we would like to assist you in becoming more successful and in handling life in a more proactive manner.  Often proactively addressing potential problems in business by having skilled counsel review your contracts, strategize legal options, draft your documents, or simply review your course of action can avoid countless hours in litigation and thousands of dollars in fees.  Allow us to assist your company in handling your potential legal issues in a more successful and proactive manner.  It is your business—take control.
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  • Don't Forget the Kids

    Parents generally want to do what is best for their children, but at times they allow their personal desires to override their good sense.  When parents get caught up in divorce litigation or custody litigation, the children are often the ones who suffer because the parent is simply focused on getting what they want.  To avoid this, the parents need to try to maintain a “business-like” relationship with the other parent.  The parents do not have to be best friends, but if they can learn to get along their children will benefit.  Children’s best interests are preserved to the extent that parents’ actions and words show that they love the children more than they dislike each other.

    The American Psychological Association conducted research a couple of years ago that found that adults are only minimally aware of children’s stress levels and of the issues that stress them.  Sam Goldstein, New Data On Stress In Our Children, http://www.samgoldstein.com/node/238 (accessed March 31, 2010).  It takes an emotionally mature adult to be able to step back in the midst of a very turbulent time and focus on the children.  At Hinkins Law we assist clients in obtaining results in divorce and child custody matters that are compatible with the best interests of their children.
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