Tort “reformers” sprouting itsy bitsy boners over new McDonald’s case

Great. Just great.

A Morgantown, West Virginia man recently filed suit for $10 million against McDonald’s based on a severe allergic reaction he suffered after biting into a Quarter Pounder with Cheese. The plaintiff asserts that he expressly ordered two Quarter Pounders without cheese, and told the McClerk that he didn’t want cheese because he was allergic.

Predictably, the lawsuit has generated a tort “reform” sputterfest over at Volokh Conspiracy. Some of the comments are genuinely hilarious. See, e.g., “It might be productive for McDonald’s to demonstrate that what they put on a quarter pounder technically isn’t cheese.” However, most run the gamut from “OMG teh frivolous!!1!” to “we should dump the American Rule and make the loser pay the winner’s attorney fees in every case” to “why the hell didn’t he look before biting into the damn thing?!”

Most disturbing is the call for the return to the good ol’ days when the common law doctrine of contributory negligence governed. Under that rule, the plaintiff loses if he did anything wrong at all and his own wrongful conduct contributed in any way to the harm, regardless of how slight the contribution. Recognizing the rule’s inherent unfairness, courts created ameliorative devices like the last clear chance doctrine and the rule that contributory negligence was no defense if the defendant’s misconduct qualified as reckless, willful or wanton, but in most cases the plaintiff was just screwed.

Over the years courts and state legislatures adopted comparative fault systems under which juries assigned percentages of responsibility to all the culpable parties. Plaintiff negligence is not a complete bar to recovery, but reduces the amount of recovery by the percentage of blame assigned to him. Under pure comparative fault system, a plaintiff with total damages of $10,000 can recover from the defendant even if the plaintiff was 90% at fault, but the damages award would be reduced to $1,000. Most states use one of the 50% systems. In Colorado, for example, a verdict that the plaintiff and defendant were each 50% responsible is a complete win for the defense. In other states, a 50/50 finding means that the plaintiff wins but can recover only half his damages.

How this case supports a universal step backward to the days of contributory negligence is a mystery to me. Sure, you can make a decent argument that the plaintiff in this case owed himself a duty to look under the bun before biting into his burger, but how does that completely and totally vitiate any wrongdoing on Mickey D’s part?

Moreover, the notion that comparative fault takes summary judgment out of the picture just doesn’t wash. One could easily put together a string cite fifty pages long of reported cases in which courts granted summary judgment in 50% jurisdictions by finding as a matter of law that the plaintiff’s negligence exceeds the defendant’s.

Finally, it might be a good idea to know all the facts before waxing idiotic as to what this case proves about the civil justice system. But that’s never been the way tort “reform” advocates operate. They’re all about visceral kneejerk reactions to incomplete media reports and ignoring final outcomes. Jackoffs.

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