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How Careful is Careful Enough?


Last updated 3/4/2019 at 2:08pm

If you stop in at Hazel’s Café any morning before the workday begins, the first thing you smell is the wonderful aroma of strong piping hot coffee. Hazel has the best in town. Local plumbers, contractors, businesspeople, along with two or three retired good old boys who just like to talk, fill up the long weathered oak table at the back wall that everyone refers to as the BS table. At one time or another, just about any topic you can think of discussed. And if there happens to be a big lawsuit in the news you can bet it will get more than its share of being argued about with just about everyone being an authority on what the law is or what it should be.

If the lawsuit is about, let’s say a husband, wife and their three young children who are killed or terribly injured in a head on collision by a drunk driver who smashes into them after crossing the centerline, even the most passionate tort reformers at the table find little to object to.

But change up the facts a little bit to where instead of a drunk driver causing the crash, it was someone swatting at a fly that annoyed them, then the volume at the table goes up and the discussion gets increasingly more lively. Or change things around to where the car carrying the family accidentally pulls out of the church parking lot in front of a very drunk driver who is in the correct lane and well within the speed limit. Someone will probably say that even a drunk driver has the right not to be smashed into if he is in his own lane driving at a safe speed. Someone else at the table will probably argue that he doesn’t care, a drunk driver should not have the right to get anything.

So what does the law say? The general rule is that all of us have a duty to exercise ordinary care which is just another way of saying that we are supposed to conduct ourselves reasonably under the circumstances. We don’t have to conduct ourselves perfectly, just reasonably. And in a jury trial, what is reasonable under the circumstances is what the jury finds it to be, based on the facts and evidence presented and after following instructions on the law.

So, what happens when Hazel is refilling mugs at the table with her delicious, steaming hot coffee and she accidentally dumps scalding hot coffee in her customer’s lap causing excruciatingly painful third-degree burns to his groin, thighs and buttocks that requires eight days of hospitalization, skin grafts, painful Hubbard immersion tankings for debridement, months of physical therapy and atrocious keloid scarring that is shocking to look at? His wife is the only one who ever sees the scars, or possibly he is the only one who ever sees them, but he knows they are there.

Well, the jurors will be asked to decide if Hazel was acting unreasonably by serving her coffee at 190° F which may cause third-degree burns within three seconds rather than 160° F, which would have given her customer 20 seconds to avoid third-degree burns by having more time to remove his clothing. Coffee at 190° F, causes third-degree burns which burns away the skin, down to the muscle/fatty-tissue layer in two to seven seconds.

Was it unreasonable for Hazel to serve her coffee at 190°F when all other restaurants in town served coffee at temperatures at least 20° less than Hazel? Was is unreasonable for Hazel to be looking back over her shoulder and talking to someone else rather than paying attention when she accidentally dumped the hot coffee in her customers lap?

These are the kind of questions that 12 jurors from a wide variety of job descriptions and backgrounds must deliberate around a table in the jury room to decide whether or not Hazel was negligent and how much her liability insurance (2) should have to pay to her customer for the harm she caused. They will probably be asked to decide a dollar amount for his pain and suffering as well.

In jury deliberations, the seriousness will be greater, and the arguments more heated at times, but when it’s all said and done, in many ways it’s a lot like the morning coffee crowd at Hazel’s café.

Every week, everyday people from all kinds of backgrounds and walks of life serve on our juries making their viewpoints known, arguing for what they believe is right and what they believe is wrong. This is good to remember whenever we hear about a jury verdict that at first blush appears to be too much money or frivolous. It’s everyday jurors like us, everyday people from all walks of life who sit through all the evidence presented by the defendant as well as the plaintiff and listened to the judge’s instructions.

Only when they find that a defendant failed to act reasonably, will a plaintiff be compensated for his or her harm. And isn’t that what we want for ourselves, others to treat us reasonably?

1. The jury would be instructed on California law which states that in a personal injury lawsuit, a drunk driver who is not at fault in an accident may not recover pain and suffering damages, but may only recover economic damages. This is true unless the at fault driver was also drunk.

2. Note: The jury will not be told that Hazel has liability insurance.


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