George Brown Week 13 Hot Coffee Tort Negligence Group Case Analysis

User Generated

puraxnv980114

Business Finance

George Brown College

Description

YOU MUST DO BOTH PARTS (A & B) OF THE ASSIGNMENT!!!

(HOT COFFE AND STEWART V. PETTIE)

READ EACH CASE AND COMPLETE THE TASKS AS INSTRUCTED.

Unformatted Attachment Preview

LAW2014 – TORT-NEGLIGENCE GROUP ASSIGNMENT, WORTH 20% GIVEN WEEK 12, DUE IN CLASS WEEK 13. GROUPS OF ~3-5. YOU MUST DO BOTH PARTS (A & B) OF THE ASSIGNMENT!!! (HOT COFFE AND STEWART V. PETTIE) READ EACH CASE AND COMPLETE THE TASKS AS INSTRUCTED. PART A: HOT COFFEE!!! 10 marks. Stella Liebeck (79 yrs old) was in the passenger seat of her grandson's car when she was severely burned by McDonalds' coffee in February 1992. Liebeck ordered coffee that was served in a Styrofoam cup at the drive-through window of a local McDonalds. After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. 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. (Two things to note: In 1992 most cars did not have cupholders, and in 1992 it was uncommon for restaurants to add the cream/sugar to coffee for you.) A surgeon determined that Liebeck suffered third-degree burns to over 6% of her body, including her inner thighs, buttocks, and genital areas. She was hospitalized for 8 days, during which time she underwent skin grafting, and other medical treatments. Liebeck initially offered to settle her claim for $20,000 (based only on the medical costs from the accident), but McDonalds refused. During pre-trial discoveries, McDonalds produced documents showing that more than 700 people claimed they had been burned by McDonalds coffee. Some claims involved third-degree burns similar to Liebeck’s. These documents indicated McDonalds' knowledge about the dangers of hot coffee. McDonalds also said that, based on a consultant’s advice, McDonalds kept its coffee temperature between 180 and 190 degrees Fahrenheit (82-88 degrees Celsius). McDonalds says this temperature gives their coffee “optimum taste”. McDonalds admitted that they had not evaluated the danger of coffee at this temperature. Other restaurants sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 °F (57-60 °C). 1 Furthermore, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be kept at 180 to 190 °F. He also testified that a burn hazard exists with any food substance served at 140 °F or above, and that McDonalds coffee is dangerous to drink 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 temperature of its coffee. An expert in thermodynamics applied to human skin burns testified that liquids at 180°F will cause 3rd degree burns within 7 seconds. Other testimony showed that with a temperature around 155°F, the extent of the burn significantly decreases. Thus, if Liebeck's spill had involved coffee at 155°F, the liquid would have cooled quicker, and given her time to avoid a serious burn. McDonalds argued that consumers know coffee is hot and that customers want it that way. But, the company admitted that customers were unaware they could suffer 3 rd degree burns from the coffee. They also said 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% at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages. McDonalds appealed (of course). They won the appeal and the punitive damages were reduced to $480,000 even though the judge called McDonalds' conduct “reckless, callous and willful”. (By the way: An investigation done after the trial found that the temperature of coffee at the McDonalds where Stella spilled her drink had dropped to 158 °F.) The parties eventually agreed to an out of court 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. Task: Your group – as a whole - must answer the following questions. Please be sure to put the FULL name (as it appears on registration) of all group members on your assignment. 1. Do you agree that Stella Lieback was 20% responsible for her injury? Should she be held more/less responsible? Why or why not? 3 marks. 2. The judge called McDonalds conduct “reckless, callous and willful.” Do you agree with this criticism? Why or why not? 2 marks. 3. How much money do you think Stella Lieback should have been awarded? Consider compensatory and punitive damages. Tell me why. 3 marks. 4. In your opinion, what is the significance (if any) of the fact that after the trial the temperature of the coffee was lowered to 158°F? 2 marks. 2 PART B: STEWART V. PETTIE 10 marks. On December 8, 1985, Gillian Stewart, her husband Keith Stewart, her brother Stuart Pettie, and his wife Shelley Pettie went to the Stage West, a dinner theatre in Edmonton for an evening of dinner and live theatre. Before the evening was finished tragedy had struck. After leaving Stage West at the conclusion of the evening a minor single vehicle accident left Gillian Stewart a quadriplegic. Gillian Stewart and her sister-in-law, Shelley Pettie, were both employed by Dispensaries Limited. For its 1985 Christmas party, Dispensaries Limited paid the price of admission for its employees and their spouses and friends to attend a performance at Stage West, a dinner theatre operated in Edmonton. The admission price included the dinner and performance (play), but did not include the cost of alcohol consumed. The two sisters-in-law, with their husbands, went to the dinner theatre together in Stuart Pettie's car, with Stuart Pettie driving. They arrived at the dinner theatre around 6:00 p.m., and were seated by a hostess at a table which they selected from a group of tables which had been set aside for the approximately 60 people in the Dispensaries Limited group. The dinner theatre was organized with a full buffet dinner to be followed at 7:45 p.m. by a three-act play. In addition, cocktail waitresses provided table service of alcohol. The Stewart and Pettie table was served by the same waitress all evening, and she kept a running total of all alcohol ordered, which she then presented at the end of the evening for payment. Waitresses would take drink orders during dinner and before the play started, and would also take drink orders during the two intermissions. No orders were taken while the play was in progress. Stuart Pettie and Keith Stewart each ordered several drinks over the course of the evening, ordering the first drinks before dinner, and, in addition, ordering drinks after dinner but before Act I, and then during each of the two intermissions. Their wives, on the other hand, had no alcohol during the entire evening. They were present at the table during the entire course of the evening, while the drinks were ordered, served, and consumed. Gillian Stewart's testimony was clear that she knew, at least in general terms, the amount that Stuart Pettie had to drink during the evening. Stuart Pettie was drinking "double" rum and cokes throughout the evening. The trial judge found that he drank five to seven of these drinks, or 10 to 14 ounces of liquor. The trial judge also found that despite the amount that he had to drink, Stuart Pettie exhibited no signs of intoxication. This appearance was deceiving, however, as he was intoxicated by the end of the evening. 3 The group left the dinner theatre around 11:00 p.m. Once out in the parking lot, they had a discussion amongst themselves about whether or not Stuart Pettie was fit to drive, given the fact that he had been drinking. Neither his wife, nor his sister (who acknowledged that she knew what her brother was like when he was drunk), had any concerns about letting Stuart Pettie drive. All four therefore got into the car and started home, with Stuart Pettie driving, Keith Stewart in the front passenger seat, and their spouses in the back seat. That particular December night in Edmonton there was a frost which made the roads unusually slippery. The trial judge found that Pettie was driving slower than the speed limit (50 km/h in a 60 km/h zone), and also accepted the evidence of Gillian Stewart that he was driving properly, safely and cautiously in the circumstances. Despite his caution, Stuart Pettie suddenly lost momentary control of the vehicle. The car swerved to the right, hopped the curb, and struck a light pole and noise abatement wall which ran alongside the road. Three of the four persons in the vehicle suffered no serious injuries. Gillian Stewart, however, who was not wearing a seat belt, was thrown across the car, struck her head, and was rendered a quadriplegic. The expert testimony at trial was that IF she had been wearing her seat belt (which was not required by law in Alberta in 1985) her injuries would have been prevented. About an hour after the accident, Stuart Pettie registered blood alcohol readings of .190 and .200. The trial judge found that, while it is not clear what his blood alcohol reading would have been at the time of the accident, he was, without a doubt, intoxicated, and that his blood alcohol content would have been certainly over .1. Task: Your group – as a whole - must answer the following questions. Please be sure to put the FULL name of all group members on your assignment, and attach this part of the assignment to Part A (Hot Coffee). You will be assessing LIABILITY for the Stewart v. Pettie case. The names get confusing! Gillian (Pettie) Stewart and Stuart Pettie are brother and sister. Gillian is married to Keith Stewart, and Stuart’s wife is Shelley (and she worked with Gillian). Only one person got injured: Gillian. Her brother Stuart was driving, and her husband Keith was in the front seat beside him. The two women were in the back seat. They were at the Christmas party for the company where the two women worked (Dispensaries Ltd.) The place where the dinner-party-theatre was held was at Stage West. 1. Do you think Dispensaries Ltd. Is liable at all? Why or why not? 2 marks 2. How much responsibility for the tragedy should go to Stage West? Why? 3 marks 3. How much responsibility for the tragedy should go to the driver, Stuart Pettie? Why? 3 marks 4. What about Gillian? Is she contributorily liable? Why or why not? 2 marks 4 HOT COFFEE!!! For Class Discussion Stella Liebeck (79 yrs old) was in the passenger seat of her grandson's car when she was severely burned by McDonalds' coffee in February 1992. Liebeck ordered coffee that was served in a Styrofoam cup at the drive-through window of a local McDonalds. After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. 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. (Two things to note: In 1992 most cars did not have cupholders, and in 1992 it was uncommon for restaurants to add the cream/sugar to coffee for you.) A surgeon determined that Liebeck suffered third-degree burns to over 6% of her body, including her inner thighs, buttocks, and genital areas. She was hospitalized for 8 days, during which time she underwent skin grafting, and other medical treatments. Liebeck offered to settle her claim for $20,000 (her medical costs from the accident), but McDonalds refused. During pre-trial discoveries, McDonalds produced documents showing that more than 700 people claimed they were burned by McDonalds coffee. Some claims involved third-degree burns similar to Liebeck’s. These documents indicated McDonalds' knowledge about the dangers of hot coffee. McDonalds also said that, based on a consultant’s advice, McDonalds kept its coffee temperature between 180 and 190 degrees Fahrenheit (82-88 degrees Celsius). McDonalds says this temperature gives their coffee optimum taste. McDonalds admitted that they had not evaluated the danger of coffee at this temperature. Other restaurants sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 °F (57-60 °C). 1 Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be kept at 180 to 190 °F. He also testified that a burn hazard exists with any food substance served at 140 °F or above, and that McDonalds coffee is dangerous to drink 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 temperature of its coffee. An expert in thermodynamics applied to human skin burns, testified that liquids at 180°F will cause 3rd degree burns within 7 seconds. Other testimony showed that with a temperature around 155°F, the extent of the burn significantly decreases. Thus, if Liebeck's spill had involved coffee at 155°F, the liquid would have cooled quicker, and given her time to avoid a serious burn. McDonalds argued that consumers know coffee is hot and that customers want it that way. But, the company admitted that customers were unaware they could suffer 3rd degree burns from the coffee. They also said 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% at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages. McDonalds appealed (of course). They won the appeal and the punitive damages were reduced to $480,000 even though the judge called McDonalds' conduct “reckless, callous and willful”. (By the way: An investigation done after the trial found that the temperature of coffee at the McDonalds where Stella spilled her drink had dropped to 158 °F.) The parties eventually agreed to an out of court settlement which has never been revealed to the public. 2 1. Do you agree that Stella Lieback was 20% responsible for her injury? Should she be held more/less responsible? Why or why not? This is all about EXPECTATIONS and DUTY OF CARE. But before I get to that… It’s also about the facts of WHAT HAPPENED not what you wish had happened or what someone COULD HAVE DONE. Many students say: • • • • Stella could have asked her son to put the cream/sugar in for her She could have asked McD to put cream/sugar in for her She could have waited for a more secure/safe place to add the cream/sugar Etc. Yes, well, should also could have ordered an orange juice instead of a coffee… she also could have stayed in bed all day and ordered a pizza! But the FACTS of whatwhere-when-how, etc. are what’s outlined in the reading. You must deal with the facts! STELLA MCDONALDS Expectation: she knew coffee was a hot Duty of care: McD KNOWS people at beverage, but did she know HOW HOT? drive thru are in their cars and either The answer is NO are moving or will be moving. With that in mind: Duty of care to ensure safety of their products in a moving vehicle. Did she expect that a coffee might lead McD knows what their coffee temp is. to 3rd degree burns? NO! They KNOW the risk (see 700 complaints) Is there any reason for her to think that The coffee temp is in THEIR control the McD coffee would be about 40 degrees hotter that elsewhere. Reasonable person: Would a Foreseeable: Given the 700 complaints, reasonable person have expected the yes – this was foreseeable coffee could 3 2. The judge called McDonalds conduct “reckless, callous and willful.” Do you agree with this criticism? Why or why not? Reckless: Their coffee is about 40 degrees hotter than elsewhere. Callous: They showed total disregard to potential harms Willful: They COULD HAVE lowered the temperature of their coffee, but they chose not to. 3. How much money do you think Stella Lieback should have been awarded? Consider compensatory and punitive damages. Tell me why. Consider: • Ongoing medical costs • Reduced quality of life: pain to her body • Think about daily actions and where she was burned: Imagine going to the bathroom! Or, what about her sex life? • For damages in this case, consider both compensatory and punitive. 4 The Law of Negligence 2 Summary of Objectives  To define tort law  To identify elements of negligence  To assess duty of care in the hospitality industry  To isolate factors that may reduce liability for breach of duty of care Copyright © 2007 by Nelson, a division of Thomson Canada Limited 3 Ooops! In the Hospitality Sector – unfortunately – you’re probably more likely to deal with unintentional torts – accidents… oops!!! - than with intentional torts. Additional examples include a guest slipping on the wet floor of your hotel lobby, a customer driving drunk after leaving your bar, a chef in your banquet hall burning herself, a wedding guest getting food poisoning… and so on. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 4 Elements of Negligence  The elements of negligence are  a duty of care owed by the defendant  a breach of the duty of care  an injury to the plaintiff  proximate cause between the breach and the plaintiff’s injury Copyright © 2007 by Nelson, a division of Thomson Canada Limited 5 Definition of Tort  An intentional or unintentional injury (other than a breach of contract) to the victim’s  Body – eg: broken leg, burn marks  Mind – eg: mental stress, nightmares  Property – eg: your car, your house  Pocketbook – eg: your business, your reputation Copyright © 2007 by Nelson, a division of Thomson Canada Limited 6 Duty of Care  Everyone has a duty to take reasonable care to avoid causing injury to anyone to whom a duty is owed.  The Reasonable Person Test – what would a careful, thoughtful person in the same circumstances have done? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 7 Duty of Care continued  Think for a minute about duty of care here in the classroom right now…  Who owes what kind of duty of care to whom?  Imagine if the fire alarm went off right now & the teacher WOULD NOT LET YOU LEAVE? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 8 Duty of Care – case #1  Question: What do customers in a “strip joint” look at?  http://caselaw.canada.globe24h.com/0/0/al berta/court-of-queen-sbench/1984/06/07/edwards-v-tracy-starr-sshows-edmonton-ltd-1984-1189-ab-qb.shtml  Have a look at the case above: Edwards v Tracy Starr’s Shows.  Do you agree with the verdict? What are your thoughts on DUTY OF CARE in this situation? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 9 Duty of Care – case #2  Now look at the case of Salm v Coyle 2004  Here’s the link: http://www.canlii.org/en/bc/bcsc/doc/2004/2004b csc112/2004bcsc112.html  What are your thoughts on DUTY OF CARE here?  How does this compare with what you have learned in SMART SERVE? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 10 Purposes of Tort Law  Specifically, to restore the injured party to the position he or she was in before the injury  In general, the primary purposes of tort law are regulation, deterrence, compensation, dispute resolution, education and prevention. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 11 Intentional Torts  Assault – the threat of serious unwanted touching  Battery – the act of serious unwanted touching  Please note: ASSAULT is verbal or a threatening/intimidating motion without touching.  The tort concept of ASSAULT differs from criminal law & from what you see on TV shows.  Battery is the actual hitting/touching physical contact part of it. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 12 Intentional Torts Continued  Trespass – unlawful entry upon property  Conversion – a person without authority wrongfully takes, retains or disposes of the personal property of another  Here’s a link to a vacation “conversion” scam: http://www.cnbc.com/id/101694859  And another similar vacation con: http://www.forbes.com/sites/vanessagro ut/2014/04/11/how-to-avoid-theinternets-hottest-scam-fake-vacationrentals/ Copyright © 2007 by Nelson, a division of Thomson Canada Limited 13 Intentional Torts Continued   False Imprisonment – confining or detaining someone without lawful authority  Imagine detaining a guest at your hotel because you thought they were trying to skip out on the hotel bill… then finding out they had already paid!  Similar scenario: Imagine detaining a diner at your Bistro whom you thought was going to “dine & dash” but someone had already picked up the tab! Intentional Infliction of Mental Suffering – deliberately causing mental suffering Copyright © 2007 by Nelson, a division of Thomson Canada Limited Yeah, yeah, yeah… still on Intentional Torts  Deceit – fraudulently misleading another   Yeah, yeah, this is Champagne… 100% real Champagne… from USA, good old authentic American Champagne! Intentional Interference with a Contract – urging someone to breach a binding contract  BREACH essentially means to break the rules, break your promise.  Example: Joe has a contract to DJ Amy’s party for $500. Then Adam tells Joe: “Don’t play her party – DJ at my party instead and I’ll pay you $600”. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 14 15 Defences to Intentional Torts Consent  Self defence  Defence of property  Defence of a third person  Necessity  Legal authority  Lack of intention  Copyright © 2007 by Nelson, a division of Thomson Canada Limited Causation and the Burden of Proof  A defendant will be liable for reasonably foreseeable consequences of his or her acts.  If injury was a likely consequence of an act, it is not necessary to know exactly how such an injury would be caused. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 16 Pajot v Commonwealth Holiday Inns 1978, ONT The plaintiff guest was injured when he fell through a poorly marked glass door. The court found that the plaintiff had exercised reasonable care, but that the hotel had failed to exercise reasonable care to prevent injuries to an invitee from an unusual danger of which it was, or ought to have been, aware. There was an implied warranty that the premises were as safe as the exercise of reasonable care and skill could make them. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 17 18 Thin Skull Rule  A tortfeasor who can reasonably foresee some injury as a consequence of his or her conduct may be liable for more serious consequences than he or she anticipated.  So, if I tickle you – maybe I can see some minor possible harm – maybe tickling will accidentally leave you with a scratch.  But, I decide the potential harm is small & I really want to tickle you, so… Copyright © 2007 by Nelson, a division of Thomson Canada Limited 19 “Thin Skull” continued…  So, I go ahead and tickle your feet because it’s funny to me & worth the (minor) “risk”.  But – WHOA!!! When I tickle you, somehow you end up with ten broken toes! Who could have guessed this would happen? Who knew your bones were so fragile? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 20 Res Ipsa Loquitur  means “The thing speaks for itself”   Without negligence, injury would not normally have occurred The elements are injury caused by misadventure not normally occurring without negligence  the thing causing the injury was within the defendant’s control  the plaintiff did nothing to provoke the accident  the plaintiff had no prior knowledge of the danger  Copyright © 2007 by Nelson, a division of Thomson Canada Limited The Pizza Example – res ipsa loquitor  Jill takes her family out for pizza at Pablo’s Pizzeria. The whole family gets food poisoning.  Was the FP Pablo’s fault? Did cook not wash hands? Were the pizza ingredients properly stored?  Or, maybe everything was fine at Pablo’s and the contamination came from Charlie’s Cheese Wholesaler. Maybe packaging at Charlie’s Chees was unsanitary.  Either way, Jill doesn’t care – she is so sick, her family is so sick! Copyright © 2007 by Nelson, a division of Thomson Canada Limited 21 22 What next?  Discuss as a class:  Who do you think Jill would sue? Pablo’s Pizzeria or Charlie’s Cheese Wholesale?  How might the trial unfold? How would evidence be gathered?  What if Jill sues Pablo but it turns out that the fault was really Charlie’s? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 23 Strict Liability  The defendant may be found strictly liable if injury occurs even though precautions were taken.  Jim the roofer has a pile of tiles on the roof. They are properly stacked and the area below has “caution” signs. Jim acts responsibly, but still, the tiles fall off and hit Suzy on the head. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 24 Another example of Strict Liability  Jill is a lion tamer. The cage for her lion is good – very strong & secure. The lock on the cage is also safe and solid. But somehow the lion escapes and eats Bonnie’s toes.  Even though Jill did not actively do anything, and even though she was not negligent… Bonnie still has no toes. Bonnie is really mad and wants to sue someone! And Bonnie will most likely win a nice settlement. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 25 Fehr v Karz Kafe Ltd. 1993, SASK  The plaintiff attempted to seat herself in the defendant’s restaurant. The table and chairs were jammed in a corner close to the bar, forcing her to squeeze into her chair while pushing the others apart. Plaintiff hit the back of her head against the overhand of the bar structure located behind her. The Court ruled that the combination of the bar overhang plus the proximity of the table and chairs to each other was an unusual danger, and that the plaintiff had taken reasonable care in the circumstances. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 26 Contributory Negligence  If a plaintiff is partly or solely the cause of his or her own injury, the amount of compensation will be reduced accordingly.  Have a look at Repushka v Perentes  Here’s the link: http://www.canlii.org/en/sk/skqb/doc/19 96/1996canlii7104/1996canlii7104.html?se archUrlHash=AAAAAQAIcmVwdXNoa2EA AAAAAQ&resultIndex=1 Copyright © 2007 by Nelson, a division of Thomson Canada Limited 27 Voluntary Assumption of Risk  A plaintiff who has participated in an activity knowing that injury might result may be said to have assumed the risk voluntarily. The defendant must establish that the plaintiff knew about the risk and understood it  the plaintiff had a choice to avoid the risk but instead voluntarily assumed it  the defendant was not in breach of any statutory duty from which the injuries flowed  Copyright © 2007 by Nelson, a division of Thomson Canada Limited 28 Risky Business!  Consider the case of Crocker v Sundance Resorts  Here is the link: http://www.canlii.org/en/ca/scc/doc/1988/1988ca nlii45/1988canlii45.html?autocompleteStr=crocker%2 0&autocompletePos=2  What is your opinion of this case? Copyright © 2007 by Nelson, a division of Thomson Canada Limited 29 Waivers and Disclaimers  Waivers are separate contracts. One party agrees not to try to impose liability on the other if there is an injury.  Disclaimers are attempts by one party to unilaterally impose on the other the terms specified in the waiver.  NOTE: We will discuss waivers & disclaimers later in the course! Copyright © 2007 by Nelson, a division of Thomson Canada Limited 30 Vicarious Liability  Employers are responsible for the torts of employees which occur while they are performing their duties.   Example: Minh hired Ahmed to work as a bartender in her establishment. Ahmed acts inappropriately – maybe he overserves a customer. The customer becomes injured & Minh can be sued too even though she was not on site when the injury happened. Failure to correct a problem such as incompetence of an employee may also result in vicarious liability.  Consider drivers/delivery vans: The company & the driver him/herself could both be sued if there is an accident. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 31 More on Vicarious Liability  So, what if an employee does something wrong outside of his duties?  What if he/she is in uniform, but “not on the clock”?  Carlos delivers produce from 9-5 in the Toronto area. He stays in the company van after work (without permission) & heads down to Niagara Falls to see his cousin. Carlos gets drunk, and while still driving the company van, he has an accident at 9:45 pm.  The company would NOT be liable: Carlos was not performing his job – he was actually breaking his terms of employment (time & location… and booze). In fact, the company might even have him arrested for stealing the company van. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 32 Negligent Misrepresentation  If someone relies on advice or information negligently provided by a specialist, and does so reasonably to his or her detriment, a duty of care is breached.   Think back to the class on employment law: Imagine a new hire lied about their experience/credentials. Imagine the new hire is incompetent and causes you to lose business. Informed consent or an appropriate disclaimer may relieve the specialist of liability.  More on disclaimers later in the course. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 33 Passing Off  If a reasonable member of the public would be misled into believing one company’s goods or services are those of another selling a similar product, the victim may seek an injunction and damages.  Examples: What if you think you’re buying organic fruits but you’re not? Suppose your poultry supplier says his chickens are “free range” but he’s lying? Imagine a distributor tells you her products are organic, but they aren’t. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 34 Beefy Fries?  French fries are made from potatoes, right????  Would you have any reason to think of a French fry as NOT being vegetarian? Would you have any reason to assume there would be BEEF products in French fries?  Check out this case: http://www.cbsnews.com/news/mcdona lds-settles-beef-over-fries/ Copyright © 2007 by Nelson, a division of Thomson Canada Limited 35 Defamation   The publication of a false statement about someone either verbally or in writing which damages their reputation Defences the defendant may raise are  truth of the statement  consent of the plaintiff  absolute privilege  qualified privilege  fair comment  In class #10 we will look at a case that relates to this. It’s about barfing on a buffet. Yes, really. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 36 Injurious Falsehood  Defaming a business, a product or a property rather than a person Copyright © 2007 by Nelson, a division of Thomson Canada Limited 37 Nuisance  Interference with another person’s use and enjoyment of their land  Must be continuing and unreasonable Copyright © 2007 by Nelson, a division of Thomson Canada Limited 38 Occupiers Liability Legislation  Occupiers owe a duty of care to those entering on, or in the vicinity of, their premises.  Depending on jurisdiction, there may be a distinction between the duty owed to an invitee and a licensee.  We will discuss OCCUPIERS LIABILITY in greater detail in upcoming weeks. Copyright © 2007 by Nelson, a division of Thomson Canada Limited Preventing Negligence Claims Standard operating procedures  Staff training  Adherence to regulations  Record keeping  Use of waivers, disclaimers and releases  Insurance  Copyright © 2007 by Nelson, a division of Thomson Canada Limited 39 40 What do you think?  Do you think people should take more responsibility for their own behaviour?  Do you think people try to use accidents as a way to get rich? “Jackpot Justice”?  How do Canada’s tort/negligence/liability laws compare to the laws in other countries? Copyright © 2007 by Nelson, a division of Thomson Canada Limited
Purchase answer to see full attachment
User generated content is uploaded by users for the purposes of learning and should be used following Studypool's honor code & terms of service.

Explanation & Answer

Attached.

LAW2014 – TORT-NEGLIGENCE GROUP ASSIGNMENT, WORTH 20%
GIVEN WEEK 12, DUE IN CLASS WEEK 13. GROUPS OF ~3-5.
YOU MUST DO BOTH PARTS (A & B) OF THE ASSIGNMENT!!!
(HOT COFFE AND STEWART V. PETTIE)
READ EACH CASE AND COMPLETE THE TASKS AS INSTRUCTED.

PART A: HOT COFFEE!!! 10 marks.
Stella Liebeck (79 yrs old) was in the passenger seat of her grandson's car
when she was severely burned by McDonalds' coffee in February 1992.
Liebeck ordered coffee that was served in a Styrofoam cup at the drivethrough window of a local McDonalds.
After receiving the order, the grandson pulled his car forward and stopped
momentarily so that Liebeck could add cream and sugar to her coffee.
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.
(Two things to note: In 1992 most cars did not have cupholders, and in
1992 it was uncommon for restaurants to add the cream/sugar to coffee
for you.)
A surgeon determined that Liebeck suffered third-degree burns to over
6% of her body, including her inner thighs, buttocks, and genital areas.
She was hospitalized for 8 days, during which time she underwent skin
grafting, and other medical treatments.
Liebeck initially offered to settle her claim for $20,000 (based only on the medical costs
from the accident), but McDonalds refused.
During pre-trial discoveries, McDonalds produced documents showing that more than
700 people claimed they had been burned by McDonalds coffee. Some claims
involved third-degree burns similar to Liebeck’s.
These documents indicated
McDonalds' knowledge about the dangers of hot coffee.
McDonalds also said that, based on a consultant’s advice, McDonalds kept its coffee
temperature between 180 and 190 degrees Fahrenheit (82-88 degrees Celsius).
McDonalds says this temperature gives their coffee “optimum taste”. McDonalds
admitted that they had not evaluated the danger of coffee at this temperature. Other
restaurants sell coffee at substantially lower temperatures, and coffee served at home is
generally 135 to 140 °F (57-60 °C).

1

Furthermore, McDonalds' quality assurance manager testified that the company
actively enforces a requirement that coffee be kept at 180 to 190 °F. He also testified
that a burn hazard exists with any food substance served at 140 °F or above, and that
McDonalds coffee is dangerous to drink 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 temperature of its coffee.
An expert in thermodynamics applied to human skin burns testified that liquids at
180°F will cause 3rd degree burns within 7 seconds. Other testimony showed that
with a temperature around 15...


Anonymous
I was having a hard time with this subject, and this was a great help.

Studypool
4.7
Trustpilot
4.5
Sitejabber
4.4

Similar Content

Related Tags