Posted On: February 15, 2005, 4:17 pm CST

Posted By: Tom Laquercia

In response to Barney's complaint about lawyers being the real issue, let me say that lawyers aren't permitted to round up clients because that's champerty.But if you want want some novel thinking in expanding liability don't go back to the boiling hot coffee case, but rather to the middle ages when the concept of torts first began in England. Since then, attorneys have been called upon to serve their clients and therefore society by imaginative thinking. Products liability is just one modern example of the development of the law with skillful lawyering that persuades judges to expand or contract liability as the case may be. And my point is that it's not a one way street. While New York's Buick v. McPherson in the last century began the expansion of the liability of a manufacturer to one not in privity of contract, there are cases that come down that limit liability such as NY's Fireman's Rule that limited an injured fireman's right to sue a building owner due to the assumption of high risk of the job which some of you may be familiar with. Recently our firm which primarily does defense work for insurers and state agencies raised the bar for damages for undocumented aliens by convincing an intermediate appellate court to apply federal immigration law (IRCA) to state tort actions. Illegal aliens can no longer recover future wages based upon an American wage scale, only their home country's scale (unless the case is reversed by NY's highest court). On balance, it comes down to who is going to be creative and how the legal services will be paid for as motivating the attorneys who are asked to represent clients, whether plaintiffs or defendants.

And, finally, though I was not involved in the burning coffee case, I understand in house studies found that most customers waited to drink their coffee elsewhere. The reason the coffee's temperature was so literally burning hot at the time of sale was in order to make it more palatable by the time they did so."Ya pays ya money, ya takes ya choice!"