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Published by the Kansas Bar Association
Editor: Alisa Arst, Arst & Arst P.A., Wichita
Coordinators: Hon. G. Joseph Pierron, Kansas Court of Appeals, and Meg Wickham, Kansas Bar Association
Greetings from the Kansas Supreme Court and the Kansas Bar Association. Welcome to this edition of Law Wise and the fifth edition of
the 2006-2007 school year. The theme of Marchís edition of Law Wise is "frivolous torts."
In this issue:
Calendar of Events
- March 31 . . . . . . . .Mock Trial Competition
- July 8-13 . . . . . . . . We the People ... Kansas Summer Institute for Kansas Teachers of Grades 5-12
What is a Tort?
By Alisa M. Arst, editor
This issue of Law Wise includes information about lawsuits based on a "tort." A
tort is a civil wrong, other than a breach of contract, for which the court will provide
a remedy in the form of an action for damages. Usually a victim (plaintiff ) seeks
monetary damages from a person or business (defendant) who harmed him or her.
There are many areas of torts, one of most common being personal injury lawsuits;
for example, slip-and-fall lawsuits or automobile accidents. In some torts, liability is
imposed without finding fault. The duty owed is fixed by a standard of reasonableness,
such as in products liability cases. However, in most areas of tort litigation before a
court can order a remedy, a plaintiff must prove four elements to a tort: Duty,
breach, causation, and injury. The defendant must owe a legal duty to the victim,
the defendant had to breach that duty, the breach caused the injury (causation), and
the victim suffered an actual injury (i.e., physical, emotional, physical).
Tort lawsuits may include but are not limited to defamation (libel and slander),
products liability (defect in either manufacturing or design of a product or failure to
warn of foreseeable dangers), medical malpractice, wrongs against a business (unfair
competition), copyright and patent infringement, and wrongful death lawsuits where
survivors recover economic value of what remains of the deceased personís life.
Unfortunately, many tort lawsuits are frivolous. Frivolous litigation is a legal
claim or defense presented even though the party and the partyís lawyer had reason
to know that the claim or defense had no merit. A claim or defense may be frivolous
because it had no underlying justification in fact, or because it was not presented
with an argument for a reasonable extension or reinterpretation of the law. In the
United States we have what is called Federal Rule 11 (many states, including Kansas,
have similar rules) that requires a lawyer to perform a due diligence investigation
concerning the factual basis for any claim or defense. Jurisdictions differ on whether
a claim or defense can be frivolous if the attorney acted in good faith. Because a
frivolous defense or claim wastes the courtís and the other partiesí time, resources, and
legal fees, the court may impose sanctions upon the party or the lawyer who presents
the frivolous defense or claim.
Why did the plaintiff sue McDonaldís and win when she spilled hot coffee on
herself? Was the lawsuit frivolous? Read more about this case and others on the
following pages, then you be the judge.
McFacts about the McDonaldís Coffee Lawsuit
Everyone knows what you're talking about when you mention "the
McDonald's lawsuit." Even though this case was decided in August 1994,
for many Americans it continues to represent the "problem" with our civil
The business community and insurance industry have done much to
perpetuate this case. They don't want us to forget it. They know it helps
them convince politicians that "tort reform" and other restrictions on
juries is needed. And worse, they know it poisons the minds of citizens
who sit on juries.
Unfortunately, not all the facts have been communicated -- facts that
put the case and the monetary award to the 81-year-old plaintiff in a
significantly different light.
According to the Wall Street Journal, McDonald's callousness was the
issue and even jurors who thought the case was just a tempest in a coffee
pot were overwhelmed by the evidence against the corporation.
The facts of the case, which caused a jury of six men and six women
to find McDonald's coffee was unreasonably dangerous and had caused
enough human misery and suffering that no one should be made to suffer
exposure to such excessively hot coffee again, will shock and amaze you:
- McFact No. 1: For years McDonald's had known they had a problem
with the way they make their coffee -- their coffee was served much
hotter (at least 20 degrees more so) than at other restaurants.
McFact No. 2: McDonald's knew its coffee sometimes caused serious
injuries -- more than 700 incidents of scalding coffee burns in the past
decade have been settled by the corporation -- and yet they never so
much as consulted a burn expert regarding the issue.
McFact No. 3: The woman involved in this infamous case suffered
very serious injuries -- third degree burns on her groin, thighs, and
buttocks that required skin grafts and a seven-day hospital stay.
McFact No. 4: The woman, an 81-year-old former department store
clerk who had never before filed suit against anyone, said she wouldn't
have brought the lawsuit against McDonald's had the corporation not
dismissed her request for compensation for medical bills.
McFact No. 5: A McDonald's quality assurance manager testified
in the case that the corporation was aware of the risk of serving
dangerously hot coffee and had no plans to either turn down the heat or
to post warning about the possibility of severe burns, even though most
customers wouldn't think it was possible.
McFact No. 6: After careful deliberation, the jury found McDonald's
was liable because the facts were overwhelmingly against the company.
When it came to the punitive damages, the jury found that McDonaldĀfs
had engaged in willful, reckless, malicious, or wanton conduct and
rendered a punitive damage award of $2.7 million. (The equivalent of just
two days of coffee sales, McDonald's Corp. generates revenues in excess
of $1.3 million daily from the sale of its coffee, selling 1 billion cups each
McFact No. 7: On appeal, a judge lowered the award to $480,000, a
fact not widely publicized in the media.
McFact No. 8: A report in Liability Week, Sept. 29, 1997, indicated
that Kathleen Gilliam, 73, suffered first degree burns when a cup of coffee
spilled onto her lap. Reports also indicate that McDonald's consistently
keeps its coffee at 185 degrees, still approximately 20 degrees hotter than
at other restaurants. Third degree burns occur at this temperature in just
two to seven seconds, requiring skin grafting, debridement and whirlpool
treatments that cost tens of thousands of dollars and result in permanent
disfigurement, extreme pain, and disability to the victims for many
months, and in some cases, years.
The most important message this case has for you, the consumer,
is to be aware of the potential danger posed by your early morning
pick-me-up. Take extra care to make sure children do not come into
contact with scalding liquid, and always look to the facts before rendering
your decision about any publicized case.
Courtesy of Legal News and Views, Ohio Academy of Trial Lawyers
Lawyers Claim Big Macs Make Kids Fat
Lawyers have filed a class action lawsuit against McDonald's on behalf
of New York children, blaming the fast food restaurant for the kids'
obesity. A 13-year-old boy from Staten Island -- who is now 5 feet 4
inches tall and 278 pounds -- claims he didn't know that eating three-to-four fast food meals a week would add to his girth.
("Lawyers claim Big Macs make kids fat," Fort Worth Star-Telegram,
Nov. 21, 2002)
Junk Lawsuits are Nothing to Sneeze About
A Bacliff, Texas, man is suing a local McDonald's fast food outlet for
allegedly being too heavy on the black pepper. The lawsuit says that
Marcus Long, a 61-year-old cancer patient, coughed up black pepper,
sneezed, and suffered a bloody nose after eating a "breakfast burrito
supersaturated with black pepper." Long, who said he can only eat
soft foods because of his radiation treatment, accuses the restaurant's
employees of negligence and seeks to recover damages stemming from
the physical and mental injuries brought on by the peppered burrito.
("Mac Attack," Houston Press, Jan. 16, 2002)
Disability Rights Attorney Accused of Having Inaccessible Office
The attorney who sued Clint Eastwood over disability accommodations
at his hotel near Carmel was himself sued on allegations his office
bathroom was not wheelchair friendly.
("Disability rights attorney accused of having inaccessible office,"
Contra Costa Times, April 23, 2002)
Darn Right Absurd
"Unfortunately, wacky lawsuits are just the tip of the lawsuit abuse
iceberg," said Jon Opelt, director of Houston's Citizens Against Lawsuit
Abuse. "Junk lawsuits waste tax dollars and tie up court time. That
means the rest of us pay when others use our courts for frivolous
reasons. What's more, it means people with legitimate claims have to
wait longer to have their case heard."
Opelt noted that often cases take two to three years to be disposed in
"We support the rights of injured parties to use the legal system
responsibly in seeking fair compensation. However, some of these
lawsuits are darn right absurd," said Opelt.
Speaking of Frivolous Filings -- Did You Know?
"A fourth of all lawsuits filed in the United States are either frivolous
or fraudulent," Former U.S. Sen. George McGovern, said, citing the
American Board of Trial Advocates, in a speech before the American
Legislative Exchange Council, San Antonio, April 1994. "There is no
easy definition for the phrase 'frivolous lawsuit,' but I imagine any
claim for damages where the injuries are minimal or where the basis for
the defendant's liability is hard to believe, might qualify as frivolous."
Paul F. Waldner, president-elect, Houston Trial Lawyers Association
Viewpoints, Houston Chronicle, Aug. 31, 1996
Flaming Pop-Tart Becomes Burning Courtroom Issue
A New Jersey couple is suing the Kellogg Co., as well as appliance
maker Black & Decker Corp., for $100,000 in damages, alleging that
a cherry Pop-Tart they put in their toaster turned into a blowtorch and
burned down their house. The couple admitted to leaving their house
while the Pop-Tart was heating up, despite the warning label on the box
advising against leaving food unattended in the toaster.
("From toaster to lawsuit," The Philadelphia Inquirer, July 28, 2001)
Man Who Thought He was Dead, Sues Airlines
Scott Bender of Philadelphia sued U.S. Airways for negligence,
claiming he thought the plane he was on had crashed and he was dead
after the crew left him asleep on the aircraft. It was really dark, said his
lawyer, and Bender "didn't know if he was alive or dead" -- it turned
out the former. Now the snoozing passenger wants money for mental
and emotional anguish.
("Man thought he was dead, sues airline," The Birmingham (Ala.) News, Oct. 4, 2001)
Not So Sweet Accusation
A judge in Germany is suing Coca-Cola, claiming the habit of drinking
two Cokes a day for many years caused him to develop diabetes. He is
also suing MasterFoods since he ate lots of candy bars that they make
-- Mars, Snickers, and Milky Way -- and believes labels should have
been put on these sugary products warning consumers of possible
("Diabetic Judge Sues Coca-Cola Over Sugar Warnings", Anonova.
com, Sept. 11, 2001)
Teenager Sues Over Bad Coaching
A Levittown, Pa., teenager sued her former softball coach for $700,000
in damages. She claims that bad coaching cost her a college athletic
("Teen Sues Over Bad Coaching," The Philadelphia Inquirer, May 2,
Class Doesn't Click for Students
According to the San Antonio Express-News, a dozen students who
took a Microsoft computer certification course at the Houston branch
of Southern Methodist University are suing the school, contending
they were misled the course would be easy.
The 12 enrolled in June 1997 and all failed certification tests that
would have made them eligible for jobs overseeing Microsoft computer
Jason Crowson, the group's attorney said, "They were told all they had
to know how to do was point a mouse and click."
"Munsters" Actor Sues to be on Ballot as "Grandpa"
Former "Munsters" television star Al Lewis filed a lawsuit to be listed
on the ballot for governor in New York as "Grandpa." The lawsuit was
filed against the New York State Board of Elections because he said by
not listing him on the ballot as "Grandpa Al Lewis" voters would be
confused and not cast an informed vote.
Lesson Plan #1:
Could It Really Be a Law?
While you may think a lawsuit was frivolous in the beginning, the end result could be that the case had merit, which resulted in a change in the law. Read the following laws/ordinances to the class and decide for each why it might originally have been enacted. What public interest might it have served in days
gone by? Is it needed today? How could it be improved?
- In Oregon it is against the law to pump your own gas.
- In Georgia it is against the law to slap someone on the back.
- In Detroit it is against the law to fall asleep in the bathtub.
- It is against the law to have a frog jumping contest in Boston.
- In Ann Arbor, Mich., it is against the law to walk on any public street, alley, or park.
- In New York it is a misdemeanor to arrest a dead man.
- A woman may not drive while wearing a bathrobe in California.
- It is against the law to imitate criminals in Florida.
- In Oklahoma it is against the law for three or more dogs to meet on someoneís property without a permit.
- In Michigan it is against the law for a barbershop to be open on Sundays.
- It is against the law anywhere to tell your children to go to bed.
- It is against the law to dance to the "Star Spangled Banner."
- It is against the law in Michigan to participate in sports on Sundays ó the fine is $5.
- It is a crime to blow your nose in public in Maine.
- In Michigan there is a law that says drinking cups must be available at public drinking fountains.
Lesson Plan #2:
Explain briefly that the class is going to decide a civil comparative fault case like a jury might have to do. Then give a narrative of the facts.
Assign students in the class to roles #1Ė10, teacher and student teachers are #11 and 12). All facts occur just before school starts in the morning as the students are coming to class.
- _______________________ bicyclist in parking lot that #2 swerves to miss. (optional)
- _______________________ while driving his car in school parking lot, hits #3ís car.
- _______________________ looks out window and sees his car being hit by #2, runs out.
- _______________________ sees #3ís car being hit and #3 running, trips #3. (optional)
- _______________________ just finished eating banana; drops banana peel when #3 loses balance and bumps him.
- _______________________ slips on banana peel that #5 dropped and grabs #7ís desk while falling.
- _______________________ the soda can on #7ís desk spills when #6 grabs it.
- _______________________ slips on soda and falls; cuts hand on the buckle of #9ís backpack, which is in the aisle.
- _______________________ left backpack in the aisle.
- _______________________ laughs at the whole scene and embarrasses #8. (optional)
- _______________________ student teacher who would not let #8 leave after class starts. #8 bleeds all through class. (optional)
- _______________________ teacher who routinely allows food and drink in the classroom, although it is against the schoolís rules, which all the students know.
#8 is seriously injured, has to have stitches, and later needs surgery to fix a tendon. Scars badly. Misses finals and graduation. School lets #8 take tests later, and he or she graduates. But while taking the tests, he or she misses first four days of full-time summer job as waiter at Yia Yiaís, so he or she loses job and ends up with minimum wage, part-time job at Kmart.
The cost of repairing the damage to #3ís car is split equally by #2ís insurance company and #1ís parents. #8 and parents sue everyone and school to recover: medical bills ($10,000), lost wages ($2,500), and pain and suffering ($250,000).
Ask the class to assess comparative fault and award damages. They should talk about the factors a jury would consider and also my need to determine how to resolve differences among jury members.
Lesson Plan #3:
Torts: The Elements of Negligence
Duration: 50 minutes
Supplies: Overheads; Case Studies; Case Study Answer Sheets
I. GOAL: To help students gain a better understanding of the concept of negligence.
A. Knowledge Objectives Ė As a result of this class, student will be better able to:
B. Skills Objective Ė As a result of this class, students will be better able to:
- Understand the basic difference between civil and criminal laws.
- Understand the basic elements of negligence and defenses thereto.
- Understand the factors that courts consider when determining whether a duty existed and whether it was breached.
C. Attitude Objectives Ė As a result of this class, students will be more likely to think:
- Apply the elements of negligence to everyday factual situations.
- Become better advocates by formulating and articulate arguments.
- Avoid situations in which their actions could give rise to liability.
- That there is no bright line rule for determining negligence.
- That careless or reckless conduct can give rise to substantial liability.
- That the legal system recognizes a flexible standard of conduct based on what a reasonable person would do in like situations.
III. CLASSROOM METHODS
A. Introduction Ė Brief Lecture:
- Inform students that todayís class session will introduce them to torts and the concept of negligence and that they will be required to turn in their lecture notes at the end of class. Weíve spent a number of class sessions talking about criminal wrongs, which are prosecuted by the state on behalf of particular people and society at large. With torts, we are dealing instead with civil wrongs
committed against individuals. With civil wrongs, the individual harmed is almost always going to be the plaintiff, though family
members of injured (often deceased) persons may also sue on behalf of loved ones. There is not a prosecutor, like there is with criminal
suits. Rather, the harmed individual or a family member brings a civil suit.
- There are generally three different types of torts: negligence, intentional torts, and strict liability. Today we are only going to focus on
negligence, which is an unintentional tort. Other types of torts will be discussed in future classes.
- Introduce the topic of negligence with the following scenario:
a. Tony, an 18-year-old high school student, is listening to smooth jazz on his iPod while driving. Tony doesnít like the track he is
listening to, and looks away from the road to find something smoother. He fails to see the car in front of him stop and crashes
into it. The woman in the car suffers a broken leg and sues Tony to collect for her injuries.
- Ask the students:
- a. "If the woman wants to be compensated for her injuries, will she file a criminal or civil lawsuit?" (Answer: Civil. Criminal suits are brought by the state/prosecutor, while civil suits are brought by individuals against someone who they think has wronged them.)
- b. "Who is the plaintiff?" (Answer: The injured woman)
- c. "Who is the defendant?" (Answer: Tony)
- d. "What can the woman recover?" (Answer: Money to compensate her for her injuries. There is no jail time at stake in civil suits.)
- e. "What must she prove?" (Answer: That Tony was negligent in driving, under the four elements of negligence, to be discussed shortly, by a preponderance of the evidence.)
- i. Preponderance of the evidence requires greater than 50 percent likelihood of causation. So, 51 percent would work.
B. Elements of Negligence:
- Put up overhead explaining the elements of negligence:
- a. Duty: The defendant owed the plaintiff a duty of care. The duty of care owed is determined by a reasonable person standard. A
reasonable person would consider: (1) the burden of taking precautions, (2) the likelihood of harm, and (3) the seriousness of the
harm that might be caused.
- b. Breach: The defendantís conduct violated that duty (the defendant did not act reasonably).
- c. Causation: The defendantís conduct caused the plaintiff ís harm:
- i. Cause in fact = actual cause
- ii. Proximate cause = harm was foreseeable
- d. Damages: The plaintiff suffered actual damages
- i. Tort law is concerned with restoring the plaintiff to his or her position, had the injury not occurred.
- Ask students to apply the elements of negligence to the iPod facts.
a. "What was Tonyís duty to the woman?" (Answer: To drive in a reasonable manner, which would include being alert and not listening
to music with headphones.)
b. "Did Tony breach this duty?" (Answer: Yes. Tony breached this duty by driving while listening to an iPod with headphones and by
looking away to fiddle with the music.)
c. "Did the Tonyís conduct cause the womanís injuries?" (Answer: Yes. The harm would likely not have occurred if Tony had been
paying attention to the road, and not fumbling with his iPod, and the harm was foreseeable (i.e., it is foreseeable that if you look
away from the road you will hit the person in front of you).
d. ďDid the woman suffer actual damages?Ē (Answer: Medical costs, potential lost wages, pain, and suffering).
- Defenses to a Negligence Action (put up related overhead and review these elements with the class):
a. Contributory liability Ė Plaintiff ís failure to exercise reasonable care may offset some or all of a defendantís liability.
b. Assumption of risk Ė A plaintiff who formally accepts a particular risk of harm may be prevented from recovering for related
negligent acts by a defendant.
C. Class activity:
- Explain that with this activity, every student will be speaking in front of the class to practice their advocacy skills.
- Explain that each student will be given a scenario and will have to argue for either the plaintiff or the defendant in the given
- Explain that students will need to prepare a one-minute argument that they will present to the class. The argument must detail why their
side should prevail under a negligence standard. Students arguing for the plaintiff must say how the four elements of negligence (duty,
breach, causation, damages), are met. Students arguing for the defendant need only prove that one element of negligence has not been
met. Defendants should also think about and argue relevant defenses such as contributory negligence and assumption of risk.
- Explain that the class will be the ďjudgeĒ of each case, and that each class member will vote for either the plaintiff or the defendant.
We will then inform the class of how a court would likely (or actually did) rule. If the class gets a majority of outcomes right, then we
wonít have a quiz on this material. Otherwise, we will have a quiz on the material in one week.
- Pass out the negligence scenarios (there will be 11 scenarios, since we have 22 students in our class; each student will be arguing
something different, and each student will have to prepare on their own).
- Give students three minutes to prepare their arguments silently on their own.
- Call the two students who are the plaintiff and defendant for scenario 1 up to the front of the class. Put the scenario up on the overhead,
read it for the class, and then ask the students assigned to the scenario to present their arguments: plaintiff first, then defendant.
- After each student has presented, ask the class to vote, either for the plaintiff or the defendant. Tally the votes, and see who wins.
- Then, read the correct (actual or predicted) result of each case (see scenario sheet), to see if the majority of the class voted correctly.
Keep a running tally on the board. Remind the class that they will need to get a majority of the outcomes right to avoid having a quiz
on the material.
- Repeat steps 7 through 9 for remaining scenarios.
- Ask the students if there are any other points they want to make or questions that they have.
- Ask the students what they think of the reasonable person standard and the outcomes of the cases discussed.
- Review the elements of negligence again briefly. Remind students that it is not always easy to determine what duties individuals have
- Inform students that we will be learning more about other types of torts in more detail next class, as well as how to measure damages.
- Remind students that we will be practicing oral advocacy skills in preparation for mock trial.
- If the class as a whole correctly decided a majority of scenarios, inform them that we will not have a quiz on the material.
- If the class as a whole did not correctly decide a majority of scenarios, inform them that we will have a quiz on the materials next class.
- A. Student participation in activity and debriefing.
- B. Class knowledge of the material, based on the tally of correct scenarios.
- C. Student advocacy skills.
For the rest of this lesson, go to http://www.law.washington.edu/streetlaw/lessons/NegligenceTorts3.pdf.
The American Bar Association has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times per year (winter, summer, and fall). For information on ordering, contact the ABA at (312) 988-5735 or email@example.com.
Peace Officer's Pocket Guides to the Kansas Statutes
Pocket Press has donated two sets of "Peace Officer's Pocket Guides to the Kansas Statutes." One is "Selected Traffic Laws 2006" and the other
is "Selected Criminal Laws & Spanish for Law Enforcement." The KBA's Law Related Education Committee will make these available to Civics' Educators in Kansas at no charge. There is a limited supply, so call or e-mail Meg Wickham, manager of public services, at (785) 234-5696 or
Terrific Technology for Teachers
Check out these great Web sites
Top 10 Frivolous Lawsuits
Citizens Against Lawsuit Abuse
Frivolous personal injury lawsuits
Lengthy and detailed lesson plan based on spilled coffee case
The frivolous case for tort law change. Opponents of the legal system exaggerate its costs, ignore its benefits.
Resources at the Law-Related Education Inventory
The Law-Related Education Inventory has the following items that are useful in working with students on the Constitution. Check out the following:
- Applauding Our Constitution: Hands on Creative Lessons. This book gives a look at the Constitution. Library No. K- 8 342.02/Sp41a.
- Americaís Conscience: The Constitution in Our Daily Life. This document is for middle and high school students and covers the Bill of Rights. Library No. 342/A87.
- The American Constitution: The Road from Runnymede. This video is for middle and high school students. Christopher Reeve guides viewers through 600 years of political struggle, while examining the English roots of our Constitution. Running time: 57 minutes. Library No. 324.73/Am3513.
The Law-Related Education Inventory has many resources to help teach about law-related topics. The Kansas Bar
Association and the lawyers in your community sponsor the Law-Related Education Inventory. To order a catalog, call Meg
Wickham at the Kansas Bar Association, (785) 234-5696. The clearinghouse will mail free copies of law-related posters,
games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8 a.m. to 7 p.m., and
Friday, 8 a.m. to 5 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education
Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu.
Update: The Kansas Bar Association Law-Related Education Clearinghouse Inventory catalog has been updated. To request a new copy, please call Meg Wickham, KBA manager of public services, at (785) 234-5696 or e-mail her at firstname.lastname@example.org.
Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyersí Trust
Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education,
is edited by Alisa Arst, Wichita, (316) 265-4222. For further information about any projects or articles, contact Hon. G. Joseph Pierron, Kansas Court of Appeals, Topeka, (785) 296-5408, or Meg Wickham, manager of public services of the Kansas Bar Association, Topeka (785) 234-5696. Law Wise is printed at the Kansas Bar Association, 1200 S.W. Harrison, P.O. Box 1037, Topeka, KS 66601-1037.
Let us know what you think!
If you have any ideas or suggestions for Law Wise topics or lesson
please e-mail Meg Wickham at email@example.com.