Jose wrote:

I don't know whether we differ on the specifics (of hot water) or on the
principle of expectations, so let me ask you a different question - is
there =any= beverage which is supposed to be (and expected to be) served
hot, that should not be served (or drunk) boiling hot - that is, at 211
degrees Fahrenheit (372.6 degrees in a more civilized system)? If so,
and you were served that drink in a Styrofoam cup, expecting it to be at
its proper temperature, and through some user error spilled it on your
daughter, and only =then= found out that the liquid was =so= hot that it
would boil over if it were taken up in an elevator, then, even granted
that the error in handling was yours, would you not feel that you were
mislead into handling the beverage less carefully than you would have
had you known beforehand that it wasn't just hot, it was goddamn boiling
HOT? The difference being that an error that might have caused pain and
a lesson, instead causes serious injury and perhaps blindness?

This brings up an interesting hypothesis....involving ultimate
responsibility...personal responsibility......and responsibility based
on expectation.
There are several ways this scenario can be parsed. It is interesting to
note that an actual definition for the scenario is completely arbitrary
and subject to local standard be that legal or belief.
Personally, I favor the personal responsibility approach. Since the
actual temperature of the coffee is an unknown (and this is a given
since the drinker is not the supplier), the element of expectation can
be assumed, but is it correct? I say it isn't.
Since the temperature of the coffee will affect only the receiver and
not the supplier, there is a transaction involved in passing the hot
coffee from the supplier to the receiver.

Where lies the potential danger? To the receiver of course. Is it not
the receiver's DECISION to either accept or prove the actual temperature
of the coffee before COMMITTING to an act (drinking) involving the
coffee that can cause harm to the receiver? It's true the coffee in a
styrofoam cup is SUPPOSED to be the right temperature but it's ALSO true
that styrofoam can hide the actual temperature of what is contained in
the cup.
One side of the equation postulates that the receiver should be immune
from testing the temperature in the cup carefully before drinking based
on an assumption that the receiver's well being has been considered by
the supplier and thus the actual temperature of the coffee need not be
physically checked before committing the lips to whatever temperature is
inside the cup.
The other side of this equation postulates that the receiver has the
responsibility to ASSUME NOTHING as relates to his personal safety, thus
physically checking the temperature of the coffee before committing to
the lips.
It's an interesting conundrum, and the ultimate answer lies with
whatever the local authority dictates and in the case of damage,
whatever a lawyer can do to convince a jury.

The real rub in all this isn't the coffee or the award. It involves
issues much more complex than these mere factors. The REAL rub is in how
we as people choose to live out our lives; seeking protection from
things that can hurt us or taking the necessary steps to do all we can
to insure we don't get hurt.
I like the personal responsibility approach myself. I test the coffee
before I commit to my lips.
Perhaps education is the answer. Perhaps if we were better prepared to
take on life......perhaps if........... :-)))

Or consider shooting a rifle with cartridges that make it kick back with
such force that it breaks your shoulder. Now, rifles are =supposed= to
kick back, anybody who shoots knows this. But these particular
cartridges (the same type you've used before) generates enough force
that the rifle breaks your shoulder and the bullet goes into the next
county, hitting an accordion player.

This may very well be allowed under law. In almost every state, I
believe an argument can be made successfully for shooting an accordion
player :-))


You expected =some= kickback, but
not =that= much. You could have braced yourself better, but thought
that these cartridges were just like the others that came in the same box.

In both cases we're dealing with expectations which influence one's
actions. Sometimes the difference between reasonable expectations and
what is actually delivered are sufficient to be actionable. However, in
all cases it is easy to ridicule.

This is a little different scenario than the coffee cup. There is no way
to "test" the cartridge before pulling the trigger, therefore no lapse
in personal responsibility. In the cartridge we have a reasonable
expectation denied. The real difference is the lack of ability to test.
One could make the argument that firing the rifle and not getting the
expected response wasn't negligence since no test was available. The
only option would have been to not fire the rifle at all.

The JUDGEMENT is rendered by.... (wait for it).... a Judge.
[...] THAT is where the problem is.

I think we can all agree with that.

You think? It's much more entertaining to make fun of lawyers.

Jose


--
Dudley Henriques