Tag: Personal Injury

The Hidden Dangers: Long-Term Effects of Mild Traumatic Brain Injury

Traumatic brain injuries can have life-changing impacts on a person’s life, and understandably so because they result from injuries to the brain either through a massive blow to the head or injury by a penetrative object into the brain matter.

However, not all types of traumatic brain injuries have quite dramatic symptoms, and a mild TBI (traumatic brain injury) is one such injury. They result from a relatively minor blow to the head or a jerking of the head, causing injuries to the brain tissue.

While most mild TBIs resolve in a few weeks, some can affect the victim’s life in the long term.

Symptoms of a Mild TBI

If you have suffered a blow to the head in an accident, you need to pay attention to your symptoms, as it can help you identify signs of a mild TBI, also known as a concussion. Symptoms like passing out briefly, headache, memory loss, confusion, loss of balance, sensitivity to light and noise, problems keeping balance, tingling in your fingers, etc., are indicative of a concussion.

However, other injuries can present similar symptoms, so it is best to have a doctor make that determination. Also, it is important to note that concussions can go undetected for days because they tend to have delayed symptoms.

Unfortunately, taking too much time before seeking medical attention for a mild TBI can introduce treatment gaps, which can result in complications when seeking compensation for the long-term effects of a concussion. A timely hospital visit helps create a link between an accident and symptoms that could show days after the accident. Which is why personal injury lawyers always insist on seeking medical attention even when you feel okay.

Long-Term Effects of a Mild TBI

While most effects of a concussion will be gone after 90 days of suffering an accident, and this is for cases of severe injuries, there are situations where the effects of an injury can last years or a lifetime. Common long-term effects of a mild TBI on a person’s life include:

LONG-TERM MEMORY LOSS

Memory loss is pretty common after a concussion. However, it involves losing a recollection of the few minutes before and after an injury.

In some cases, the affected person can start remembering things once forgotten. However, in severe cases, memory loss can impact a person’s life in the long term.

DEPRESSION

Many people will develop symptoms of depression after a concussion, usually as a result of chemical changes resulting from the brain injury. While most symptoms will disappear as the brain recovers, some people may have to live with the symptoms for an extended period.

In some cases, symptoms of depression won’t show until some time after other symptoms are gone.

COGNITIVE IMPAIRMENT

In most cases, the effect of a mild TBI on a person’s thinking and cognitive abilities resolves in a few months at most.

But there is no guarantee that your cognitive abilities will return to your pre-injury levels, especially with relatively severe concussions or injuries that went undetected for a long time.

Treatment and Support for Mild TBI

You may not need hospitalization after a TBI. Often, doctors focus on treating the symptoms and may prescribe cognitive and behavioral therapy to address the psychological and injury effects on a person’s mental well-being.

If the injuries resulted from an accident and another person’s negligence was to blame, you could consider talking to a personal injury lawyer to help recover damages.

Buckfire & Buckfire, P.C. 2024
For more news on Traumatic Injuries, visit the NLR Personal Injury section.

Concussions and Their Impact: Recognizing the Signs and Seeking Help

A concussion is a mild form of traumatic brain injury and is usually caused by blunt force to the head. In some cases, it can result from a back-and-forth jerking of the head, resulting in the brain matter being dashed against the skull wall. It’s a pretty common injury in children, individuals engaged in contact sports, and Michigan car accidents.

Most concussions are not life-threatening. However, some cases can develop complications that could significantly impact a victim’s life. So, the first step in getting timely treatment is understanding its symptoms and what you ought to do after suffering an injury.

Signs and Symptoms of a Concussion

Symptoms and signs of a concussion fall into three categories: physical, cognitive, and psychological or emotional.

PHYSICAL SYMPTOMS

Where a significant blow to the head causes a concussion, the victim could pass out for a few seconds. However, this is not always the case, so you cannot use passing out as the litmus test for concussions. Often, patients exhibit symptoms like headaches, nausea and vomiting, blurred vision, dizziness, loss of balance, slurred speech, fatigue, ringing ears, tingling in the hands, loss of taste or smell, etc.

COGNITIVE SYMPTOMS

With a concussion being a brain injury, it is unsurprising that it may cause problems with brain function. In some patients, a concussion will cause problems with concentration, confusion, forgetfulness, feeling slowed down in your thinking, and trouble finding words.

EMOTIONAL SYMPTOMS

A concussion can, in some patients, cause emotional problems, resulting in a deviation from a person’s normal behavior. For example, patients may become easily irritable, report feeling foggy or “out of it,” experience immense sadness, and have anxiety.

When to See a Doctor

In most cases, symptoms of a concussion will start to show immediately after an accident, in which case seeing a doctor makes absolute sense. However, concussions are among the few types of injuries that tend to have delayed onset. In some cases, it can take up to 72 hours or even more for the first signs of a concussion to show.

If you are in an accident where you have suffered a blow to the head or are violently shaken, it is always a good idea to see a doctor. You may not have to call 911 if your symptoms are not as severe, but it is best to see a doctor on the same day or within 72 hours of an accident at most.

Timely medical interventions help in several ways. It helps stop the deterioration of an injury, shortens recovery time, and provides the documentation necessary for filing a personal injury claim if you intend to seek compensation.

What to Do To Recover Damages

Once your health is taken care of, focus on evidence gathering, starting with scene documentation in pictures and video. If there were any witnesses to the incident, talk to them, record their statements, and get their contacts so you can easily trace them if you need help with your case. If it is a car accident, you will need to get the other driver’s insurance and vehicle registration details.

Besides evidence, you need to prepare for the legal battle. It doesn’t always have to go all the way to court, but you will still need to work with a personal injury lawyer to get the best chances at recovering fair compensation.

Personal injury lawyers bring knowledge, investigation and evidence-gathering skills, negotiation skills, and respect, which altogether help you in mitigating mistakes and increasing your chances of getting a fair outcome.

Buckfire & Buckfire, P.C. 2024
For more news on How to Handle a Concussion, visit the NLR Health Law & Managed Care section.

E-Scooter and E-Bike Injuries Soar

Injuries caused by e-scooters and e-bikes increased steeply from 2021 to 2022, highlighting the serious risks associated with these transportation devices (officially known as “micromobility products”).

According to a new report from the U.S. Consumer Product Safety Commission (CPSC), titled “Micromobility Products-Related Deaths, Injuries, and Hazard Patterns,” these kinds of injuries increased by almost 21 percent from 2021 to 2022.

This marks the continuation of an alarming upward trend, illustrating that the 2023 increase is much more than a fluke: these types of injuries have increased by an average of 23 percent each year since 2017.

Digging into the data on e-bike injuries

To help you better understand the new data on micromobility devices, here are some of the most notable revelations from the latest CPSC report:

  • 46% of all e-bike injuries from 2017 to 2022 occurred in 2022.
  • Although children under the age of 15 constitute only 18 percent of the U.S. population, they made up 36 % of those injured by micromobility devices from 2017 to 2022.
  • There were 360,800 micromobility product-related emergency department visits from 2017 to 2022.
  • From January 2021 to November 2022, there were 19 deaths associated with micromobility device fires.

In light of the dangers of e-bikes and related devices—now backed up by this extensive and detailed data—CPSC called for “more than 2,000 manufacturers, importers, distributors and retailers of [micromobility devices] to review their product lines and ensure they comply with established voluntary safety standards to reduce the serious risk of dangerous fires with these products or face possible enforcement action.”

E-bike and e-scooter safety tips

While using an electric bike or scooter can be dangerous, there are numerous ways to protect yourself so you can enjoy these devices’ physical and mental health benefits while minimizing their overall risks:

Micromobility device-specific safety tips

  • According to CPSC, you should only use micromobility devices that you are certain were “designed, manufactured, and certified for compliance with the applicable consensus safety standards.”
  • Only use the supplied charger to charge your e-bike or related device, and only charge it when you’re present (in case of a dangerous malfunction). Always make sure to unplug it when you’re done charging.
  • Only use an approved replacement battery pack; likewise, never use a micromobility device with a battery pack that was modified with used cells or by unqualified individuals.
  • Do not dispose of lithium batteries in the trash. Bring used batteries to a hazardous waste collection center or specialized battery recycler.

General bike and scooter safety tips

  • Always wear a helmet in case of a fall.
  • Every time you take out your bike/scooter, check the following parts for damage:
    • Handlebars
    • Brakes
    • Throttle
    • Bell
    • Lights
    • Tires
    • Cables
    • Frame
  • To ensure vehicles and pedestrians can see you, slow down, remain aware of your surroundings, and use your bell or horn to let others know you’re there.
  • Do not ride your bike or scooter after consuming alcohol or other drugs.
  • Don’t share your scooter with another person. Only one person should ride it at a time.
  • Avoid bumps and other obstacles

If you’ve been injured by an e-bike or another lithium battery-powered device, you have options for asserting your rights and may be entitled to compensation. With the support of a legal team that understands micromobility-related injuries, your case will have the best possible chance of succeeding.

COPYRIGHT © 2023, STARK & STARK
For more articles on e-bike and e-scooter injuries, visit the NLR Personal Injury section.

Multiple Concussions Result in Greater Cognitive Deficits

A new study published in the Journal of Neurotrauma examined the lifetime traumatic injury and cognitive domain deficits following traumatic brain injury. Most interesting for those representing clients who sustained mild traumatic brain injuries is that the number of prior mild traumatic brain injuries and the role they play in affecting one’s cognitive abilities.

The study examined the longer-term cognitive effects of traumatic brain injury severity and the number of mild TBI’s in later life. The researchers examined the subset (n=15,764) of the PROTECT Study, a cohort assessing risk factors for cognitive decline between the ages of 50 and 90 years. The study found that those who had suffered at least a single mild TBI demonstrated significantly poorer attention scores at baseline compared with the no head injury group. Compared with those with no mild TBI’s, those in the 3 MTBI group manifested poorer baseline executive function and attention scores, while those who had suffered 4 or more mild traumatic brain injuries demonstrated poorer attention, processing speed, and working memory compared with those reporting no mild traumatic brain injuries. The researchers stated:

“TBI’s associated with fixed, dose and severity-dependent cognitive deficits. The most sensitive cognitive domains are attention and executive function, which approximately double the effect compared with processing speed and working memory. Post-TBI cognitive rehabilitation should be targeted appropriately to domain-specific effects…. Significant long-term cognitive deficits were associates with three or more lifetime MTBI’s, a critical consideration when counselling individuals post-TBI about continuing high-risk activities.”

The citation for the study is Lennon MJ, Brooker H, Creese B, Thayanandan T, Rigney G, Aarsland D, Hampshire A, Ballard C, Corbett A, Raymont V. Lifetime Traumatic Brain Injury and Cognitive Domain Deficits in Late Life: The PROTECT-TBI Cohort Study. J Neurotrauma. 2023 Jan 27. doi: 10.1089/neu.2022.0360. Epub ahead of print. PMID: 36716779.

Article By Bruce H. Stern of Stark & Stark

For more personal injury legal news, click here to visit the National Law Review.

COPYRIGHT © 2023, STARK & STARK

Ethylene Oxide Verdict First of Its Kind, and It’s Eye Opening!

Our prior reports discussed when an ethylene oxide case would go to verdict, and what the ensuing result would look like.  We no longer need to speculate.  On September 19, 2022, a Cook County (Illinois) jury awarded $363 million to a plaintiff who alleged that she developed breast cancer as a result of ethylene oxide emissions from the Sterigenics Willowbrook plant.  This was the first ethylene oxide personal injury case to go to trial, but there are hundreds of cases behind it waiting their turn.

Trial

After a five week trial in the Circuit Court of Cook County, Illinois, Law Division (Sue Kamuda v. Sterigenics et al, case number 2018-L-010475), the jury returned a verdict in the amount of $363 million.  Plaintiff had requested $21 million in compensatory damages and $325 million in punitive damages.

Plaintiff Kamuda argued that the ethylene oxide utilized at the Willowbrook plant, opened in 1984 and used primarily to sterilize medical equipment, caused serious cancer and reproductive health risks. Kamuda alleged that the company failed to analyze how long the chemical would stay in the air in the Willowbrook community or the distance it would travel. Further, Kamuda argued that Sterigenics recklessly failed to install emission controls decades earlier to reduce releases of the chemical.

For its part, Sterigenics argued that plaintiff Kamuda’s reliance on risk assessment and regulatory studies inaccurately led to her assertion that her breast cancer resulted in part from the plant’s ethylene oxide emissions.

Notably, the facility was closed a few years ago after the state of Illinois issued a seal order in February 2019 directing that ethylene oxide emissions had to be reduced significantly. Ultimately, the company decided to keep the facility closed.

Analysis

With this very large jury verdict, plaintiff firms will surely be pushing to get their ethylene oxide cases to trial, or, at a minimum, leverage steep pre-trial settlements.  Further, plaintiff firms will surely recruit new plaintiffs who allege some type of cancer as a result of residing in the vicinity of an ethylene oxide plant.

The next ethylene oxide case to go trial is scheduled for two weeks from now in the same court, though with different plaintiff counsel and judge, as well as a different alleged disease (leukemia).

We note that it remains to be seen whether the Kamuda verdict will be appealed. It also remains to be seen whether this verdict is aberrational or is a bellwether for future trials. Will juries return verdicts based on one type of cancer but not for another?  We will continue to report as these ethylene oxide trials go to verdict and analyze the ramifications.

Article By David A. Goldman of CMBG3 Law

For more environmental, energy, and resources legal news, click here to visit the National Law Review.

©2022 CMBG3 Law, LLC. All rights reserved.

The Cost of Bicycle Accidents: Why Bike Safety Pays Off

Along with the COVID-19 pandemic’s stay-at-home orders and a worldwide pause on travel plans, 2020 marked the onset of another phenomenon: a boom in bicycle riding. Bicycles gave people a sense of exploration and adventure during this difficult time.

This rise in cyclists comes with some sobering statistics, including a 16% rise in preventable deaths and a 5% increase in non-fatal injuries. Of the 1,260 bicyclist deaths reported in 2020, 806 of those directly involved motor vehicles. These injuries come at a significant expense: the over 13,000 bicycle injuries each year cost more than $23 billion in the United States.

But no one wants to experience a bicycle accident or the long-term consequences of one. Here’s what you need to know about bicycle safety to protect you or your loved ones while exploring the world on two wheels.

Bike accident risk factors

While the rise in bike accidents and their associated medical costs is primarily due to the increased numbers of bicyclists, there are risk factors that can affect specific individuals more than others. Common bike accident risk factors include:

Age

While adolescents, teens, and young adults make up nearly one-third of all cycling injuries treated in emergency departments, bicycle death rates are highest in adults between the ages of 55-69.

Sex

Compared to female cyclists, the death and injury rates of males are 6 and 5 times higher, respectively.

Traffic

Most cycling accidents occur in urban areas, with 64% of deaths occurring away from intersections and 27% occurring at intersections.

Alcohol

Nearly one-third of bicycling fatalities involved alcohol, either from the motor vehicle driver or the cyclist.

Bike accident cost breakdown

Fatal and non-fatal alike, cycling accidents cost the US billions each year. In addition to the injuries and fatalities which occur as a result of road accidents, there are personal costs to account for as well:

  • Medical bills

  • Recovery/rehabilitation costs

  • Loss of wages due to missing work

  • Possible changes to earning potential

  • Possible funeral and burial expenses

In terms of costs, the individual cost of a serious adult bicycle accident has grown from $52,495—medical bills, missed work, loss of quality of life—to $77,308. Today, the number would be even higher.

Of course, that’s not to mention the emotional burden of a cycling accident—especially if a cycling accident results in a long-term injury or the loss of a loved one.

That’s why prioritizing bike safety is so important. To reduce these costs, communities need to create better conditions for cycling, including safer cycling infrastructure (cycling tracks, improved street lighting) and widespread education about safe cycling practices.

Bicycle safety measures at the state level

Personal safety while cycling is critical, but state legislators in New Jersey have been working to improve safety measures for cyclists as well.

The Safe Passing Law, which was put on the books in August of 2021, requires drivers to leave at least four feet of space between vehicles and anyone sharing the road, whether on foot or by bicycle. A violation of these rules can result in a $500 fine and two motor vehicle points if bodily harm is caused.

The Division of Highway Safety and the Department of Transportation has been running a social media campaign to spread awareness about the law, an effort that included a $78,342 grant to the New Jersey Bike & Walk Coalition to educate the public on the law and the community impacts of bicycle and pedestrian safety.

Improving your bicycling safety

It’s essential to take the necessary steps to promote safety—for yourself and for others who share the road. While bicycle safety courses and education are essential, having safe bicycles and gear should also be part of the equation.

Make sure to budget for safety

Appropriate bicycling kits, from bare necessities to high-end gear, can cost anywhere from $150 to $1,000; costs can vary depending on the type of riding you do, the features you prioritize, and your budget.

Helmets, for example, may cost as little as $25 or as much as $500. Active lighting—white front lights, red rear lights, reflective tape, gear, and accessories—will typically cost a minimum of $45. Pumps, multi-tools, and patch kits can cost between $10-30 or more. Of course, investing in bright, visible clothing to wear while riding is also a good idea.

Cyclists should also regularly maintain their bicycles to keep them in good order. Many cyclists perform routine maintenance on their bikes themselves, seeking assistance from bike shops for parts and guidance. This can run between $300-500 a year in expenses.

While the costs of your bike’s features and accessories can add up, keep in mind that the investment is well worth it, as the cost of getting into an accident can be much higher.

Article By Domenic B. Sanginiti, Jr. of Stark & Stark

For more personal injury legal news, click here to visit the National Law Review.

COPYRIGHT © 2022, STARK & STARK

On the Rise: Bicycle-Related Deaths and Injuries

In 2020, preventable fatalities from bicycle accidents increased by 16%, according to the National Safety Council (NSC). The NSC also noted that over the last decade, there was a total increase of 44% in preventable bicycle-related deaths.

These figures highlight the ongoing safety crisis for cyclists on American roadways.

Bicycle-related deaths and injuries: the statistics

According to the CDC, bicyclists account for 2% of all motor vehicle crashes. Approximately 1,000 people die each year from these accidents, and 130,000 become injured. These numbers will continue to increase unless widespread measures to prioritize road safety become implemented nationwide.

We see this trend reflected in the report from the NSC, which notes an increase in preventable nonfatal injuries of 5% between 2019 and 2020. Additionally, the newest data released by the National Highway Traffic Safety Administration (NHTSA) shows that bicyclist fatalities increased again in 2021 by 5%.

In the state of New Jersey specifically, there were 30 preventable bicycle-related fatalities between 2019 and 2020. As of 2021, the number of deaths reached its highest single-year total thus far, with 27 individuals lost. Hopefully, these numbers will decrease in the coming years as legislative efforts are implemented to improve cyclist safety.

Legislation addressing the bicycle fatalities crisis

With the continual increase in motor vehicle fatalities and the increase in injuries sustained by these accidents, both state and federal legislatures have implemented new measures to address street safety.

The following legislation seeks to reduce the number of crashes and fatalities involving bicyclists, pedestrians, and others using a method of personal conveyance.

New Jersey’s Safe Passing Law

New Jersey has implemented its Safe Passing Law, laying out new driver requirements. When approaching someone using a method of personal conveyance such as a bicycle, electric scooter, or a pedestrian, drivers must do the following:

  1. Move over one lane to allow for extra space while passing.
  2. If moving over one lane is not possible, drivers must allow for four feet of space while approaching and passing.
  3. If neither moving nor allowing four feet of space is possible without violating traffic laws, drivers must reduce the vehicle’s speed to 25 mph and be prepared to stop.

Drivers who violate New Jersey’s Safe Passing Law will incur a $100 fine if the violation does not result in personal injury. However, they will incur two motor vehicle penalty points, and the fine will be $500 if the offense results in bodily injury to pedestrians, cyclists, or others using a method of personal conveyance.

The Bipartisan Infrastructure Law

The Bipartisan Infrastructure Law signed by President Biden on November 15th, 2021, authorizes up to $550B of funding between 2022 and 2026 to invest in America’s infrastructure, including support for safety improvements on our roads.

Safe Streets and Roads for All Program

The Safe Streets and Roads for All Program (SS4A) is a new grant program included in the Bipartisan Infrastructure Law that allocates $6B in funding over the next five years. The program seeks to fund local efforts to reduce roadway crashes and fatalities.

Eligible applicants for the SS4A grant include:

  • Metropolitan planning organizations
  • Political subdivisions of a State
  • Members of a federally recognized Tribal government
  • Multi-jurisdictional groups of the entities above

Also, according to the Federal High Administration, the use of SS4A funds must only be used for:

  • Development of a comprehensive safety action plan
  • Planning, designing, and developing activities for initiatives identified in the safety action plans
  • Implementing the projects and strategies identified in the safety action plan.

Article By Domenic B. Sanginiti, Jr. and Stark & Stark

For more personal injury legal news, click here to visit the National Law Review.

COPYRIGHT © 2022, STARK & STARK

Wendy’s E. Coli Outbreak Lawsuits

Health Department officials are investigating over one hundred cases of E. coli poisoning in Michigan, Ohio, Indiana and Pennsylvania. People have been diagnosed with food poisoning in Michigan, Ohio, Pennsylvania, and Indiana. The majority of these people claim that they ate sandwiches topped with lettuce at a Wendy’s Restaurant within the week before their food poisoning diagnosis.

Public health officials in Michigan have confirmed 43 cases of E. Coli that match the strain in a multi-state outbreak. A number of similar cases have been identified in Ohio. The specific source of the food poisoning has not been officially determined, but one possible source is romaine lettuce used to top hamburgers and sandwiches at Wendy’s restaurants.

The illness onset dates range from late July through early August 2022. The sickness and harm have ranged from mild to very severe. Many victims have required extensive hospitalization and medical care. Four cases of hemolytic uremic syndrome (HUS) have been diagnosed and suspected to be related to the contaminated lettuce at Wendy’s Restaurants.

  • E. Coli outbreak cases have been reported in the following counties: Allegan, Branch,Clinton, Genesee, Gratiot, Jackson, Kent, Macomb, Midland, Monroe, Muskegon, Oakland, Ogemaw, Ottawa, Saginaw, Washtenaw, and Wayne and the City of Detroit. Public health departments in those counties are closely monitoring patients and working hard to determine the source of the poisoning.

E. coli is a bacterium that lives in the digestive tracks of animals and humans. Most varieties are harmless, but some can cause severe illness. Common sources of E. coli include:

  • Raw milk or dairy products that are not pasteurized.
  • Raw fruits or vegetables, such as lettuce, that have come into contact with infected animal feces.

Symptoms of E. Coli poisoning are very serious. They include severe stomach cramps, diarrhea, and vomiting. Some people experience high fevers and many develop life-threatening conditions.

E. coli infections often require hospitalization and expensive medical care, the damages from this food poisoning can be extensive.

The Wendy’s food poisoning claims are just at their initial stages.  Very few lawsuits have been filed to date, but it is expected dozens will be filed in courthouses shortly.  At this time, there are no reported Wendy’s food poisoning settlements.

In general, food poisoning settlements include money payment for pain and suffering, mental anguish, and the physical injuries caused by the food contamination. In addition, claims for economic losses and damages are also demanded in a food poisoning lawsuit. These are financial losses and include payment of medical bills and expenses, as well as lost wages and income resulted from missed time at work.

If you ate food at a Wendy’s Restaurant that contained romaine lettuce in July or August and were diagnosed or hospitalized with E. coli poisoning, you may benefit from speaking to a food poisoning attorney.

Article By Lawrence J. Buckfire of Buckfire Law

For more personal injury legal news, click here to visit the National Law Review.

Buckfire & Buckfire, P.C. 2022

The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause.

In 1994, Liebeck v. McDonald’s Restaurants sparked a nationwide tort reform debate after a jury found McDonald’s liable for a consumer’s injuries after she spilled McDonald’s coffee on herself. At the time, many commentators predicted a wave of frivolous lawsuits and large judgments against businesses. But 25 years later, those predictions have not materialized. While consumers continue to sue, the doctrine of proximate cause limits the liability that businesses face from claims for injuries related to hot drinks.

Liebeck v. McDonald’s Restaurants

In 1992, Stella Liebeck bought a cup of hot coffee from a McDonald’s drive-through in New Mexico. While parked, she placed the cup of coffee between her legs and attempted to peel the cap off. The coffee spilled and Ms. Liebeck sustained second- and third-degree burns.

Liebeck sued McDonald’s, alleging that the hot coffee was defectively manufactured, that it violated the implied warranties of merchantability and fitness for a particular purpose, and that the defect caused her injuries. At trial, Liebeck’s attorneys offered evidence that McDonald’s asked franchisees to brew coffee at 180-190 degrees Fahrenheit. Additionally, the attorneys offered evidence that McDonald’s had received more than 700 reports of burns resulting from coffee spills out of billions of hot coffees sold during the time period.

The jury ruled in favor of Liebeck and awarded her compensatory damages of $200,000 and punitive damages of $2.7 million. But the jury determined that Liebeck was 20 percent at fault for her own injuries, and the court reduced the punitive award significantly, resulting in compensatory damages of $160,000 and punitive damages of $480,000.

Shih v. Starbucks

Shih v. Starbucks presents a similar set of facts, but with a different outcome. In June 2016, Tina Shih went to Starbucks with a friend, and each ordered a hot tea. Each tea was given to Shih in a double-cup – one full cup placed within an empty cup. Neither cup had a sleeve. Shih carried both teas to her table and sat down.

Shih claimed that because the cup of tea was filled to the top and was very hot, she did not want to lift it. Instead, she pulled the lid off the cup and moved her chair back to sip from the cup while it was on the table. Shih pushed her chair back to lean over the cup, lost her balance, and put her hand on the table to steady herself – causing the hot tea to spill in her lap. Shih sustained second-degree burns from the incident.

Shih sued Starbucks. She alleged that the double-cup without a sleeve was a manufacturing defect, which – combined with the cup being filled to the brim with hot tea – caused her injuries. Starbucks moved for summary judgment on Shih’s claims, arguing that Shih could not prove the alleged manufacturing defect proximately caused her injuries. The court agreed, granted Starbucks’s motion, and entered judgment in favor of Starbucks. In 2020, the appeals court affirmed.

Proximate Cause is Key the Difference

The differences between Liebeck and Shih are the litigants’ defect claims and their respective theories of proximate causation. The proximate cause inquiry examines the relationship between the defendant’s alleged conduct and the plaintiff’s injury: if the defendant’s conduct is too attenuated from the consumer’s injuries, the defendant cannot be held liable for those injuries. Proximate cause exists when the defect in question increased the risk of harm to the consumer, and the consumer sustained injuries resulting from the increased risk. Courts generally test proximate cause by looking at whether the harm was a foreseeable result of the defect – meaning the business could reasonably have predicted the harm.

Liebeck’s attorneys successfully argued that the coffee was defective because it was served too hot and that the excessively hot temperature put Liebeck at an increased risk of burns. Liebeck established proximate cause by showing that her burn injuries were a foreseeable result of the alleged defect – the coffee being served very hot.

Shih could not establish proximate cause because the court held that the alleged defect was too attenuated from her injuries. Shih’s attorneys argued that the lack of a cup sleeve and the fact that the hot tea was full made it defective. Specifically, Shih would not have removed the tea lid, leaned forward, moved her chair, lost her balance and grabbed the table – causing it to wobble and spill the tea on her – if Starbucks had given her a cup sleeve or not filled the cup to the brim.

The court held that the alleged defect did not increase the risk of Shih being burned or otherwise injured by the hot tea; therefore, the defect was not the proximate cause of her injuries. The lack of a sleeve and the fullness of the tea did not increase Shih’s risk of losing her balance “while attempting to execute [this] kind of unorthodox drinking maneuver,” and spilling the tea on herself. The court’s use of “unorthodox” illustrates that, in the court’s view, Shih’s injuries were not a foreseeable result of the alleged defect. The court noted that while it is foreseeable that consumers could lose their balance and spill their drinks, losing one’s balance is not “within the scope of the risk” created by Starbucks’ decision to use a double cup and to fill the cup to the brim. Thus, Shih could not prove Starbucks’ actions proximately caused her injuries.

Twenty-five years after Liebeck sparked a national conversation about hot coffee and corporate liability, Shih demonstrates that courts continue to follow public policy limitations like proximate cause to protect businesses from unforeseeable consumer injuries.

© 2021 Schiff Hardin LLP

Article by Emilie McGuire and Jeffrey Skinner with Schiff Hardin LLP.

For more articles on class action lawsuits, visit the NLR Litigation section.

How To Stay Safe On a Boat This Summer

The weather is already heating up, and you may be thinking about getting out on a boat to enjoy some summer fun with your friends and family. Despite the ongoing COVID-19 pandemic, many people may choose to safely enjoy their time on the water. However, boating accidents can lead to significant injuries for those on board. During the latest reporting year of data, the US Coast Guard states that there were 4,145 total boating accidents across the country. These incidents led to thousands of injuries and more than 600 deaths. If you are going to be spending any time on the waterway this summer, there are various safety tips then we want to discuss with you today.

Always Have a Life Jacket

Life jackets are an essential part of boating safety, whether you are on a motorized or non-motorized water vessel. Statistics from the US Coast Guard show that approximately 75% of all boating deaths are due to drowning and that 84% of drowning victims were not wearing a life jacket when they went into the water.

We need to point out that even skilled swimmers need to wear life jackets when they are on a boat. A fall from a boat can lead to a personal injury that involves an individual hitting their head and becoming disoriented or injured, making these kinds of boat injuries difficult to stay above water. Every life jacket needs to be the appropriate fit for the wearer’s size and weight. Always ensure that the life jacket properly fastens.

Use Good Judgment

When boating, good judgment goes a long way. This can include the following:

  • Never operating a boat while under the influence of alcohol or drugs as this can affect judgment, vision, balance, and coordination.
  • If the weather looks rough or if the forecast for the day does not look good, you need to consider not going out on the boat. Bad weather conditions can create tremendous hazards for boaters.
  • Always operate at a safe speed. Open waters can be deceptively dangerous, and operating at high speeds increases the risk of a collision with other boats, docks, the shoreline, and obstacles in the water.

Be Careful When Participating in Water Sports

Many people in and around our area like to participate in various popular water sports, including water skiing, tubing, wakeboarding, kneeboarding, etc. If you or your family members will be participating in these activities, you need to thoroughly understand how to safely use all materials and objects involved.

  • Learn how to get out of the water safely and how to use the tow rope.
  • Understand basic hand signals and how to use a spotter in the boat.
  • Make sure that the tow line does not get caught in the propeller of the boat or wrapped around any person.
  • Wait for a propeller to stop moving before getting back on the boat.
  • Only participate in water sports during the daytime.

Ensure a Boat has Been Properly Maintained

The truth is that boats are high maintenance vessels. If you and your family own a boat or are enjoying time on a friend’s boat, ensure that the vessel has been properly inspected and maintained. If you will be enjoying boating activities or water sports on a rented boat, make sure you only work with accredited businesses with extensive experience handling boats.

Be Mindful of Social Distancing

Boats are not conducive to the social distancing measures necessary to stop the spread of COVID-19. This summer, you should consider only going out on a boat with those who live within your household. Failing to do so could risk you or somebody you love contracting the virus, which is not something you want to experience.

© 2020 by Console and Associates. All rights reserved.

See the Personal Injury law section of the National Law Review for similar topics.