Posted On 12.17.12 by in Burn Injury
The news is reporting a new beverage-spill lawsuit, this time in a Nashville, Tennessee case against Southwest Airlines. The all-to-familiar story goes like this:
Familiar? We’ve all heard (ad nauseum) about the McDonald’s hot coffee case. The case was a poster-child for tort-reform, the efforts by big businesses and insurance companies to limit lawsuits and cap the amount of damages that plaintiffs can recover in personal injury lawsuits. As lawyers, we’re satisfied that the jury who heard the evidence in the McDonald’s hot coffee case was in the best position to evaluate the evidence—we were not there, and there is much misrepresentation of facts in the media about that case. Putting that aside, let’s evaluate the new Southwest Tea Case.
First, a few additional facts—as fans of Southwest Airlines know, passengers get to choose their own seats (assuming you check in 24-hours before—otherwise, it’s up to chance). This woman sat in the very front row, where there is no tray. Because she didn’t have a tray, she put the cup of hot water between her legs.
Failure to Warn
Now, I haven’t seen the complaint online, so this is all secondhand. NBC reports that the woman is claiming that the airline was negligent in (1) not providing some sort of tray; and (2) not warning her of the dangers associated with tea in the front row.
If she truly had a choice as to her seat, and if she knew that the seat did not provide a tray, she might be said to have assumed the risk of spilling a beverage because of the lack of a seat. The failure to warn claim seems a bit silly—even if she didn’t know beforehand that there was no tray, she certainly should have known it by the time she ordered the tea.
It seems to me that the better approach would have been to rely strictly on a claim that the tea was too hot for the conditions of flying (which, to be fair, is probably a component of the woman’s claim). The spill could have happened with the cup in her lap or the cup on a tray table. It’s an airplane—something tells me that turbulence and uncovered hot beverages don’t really mix. The woman could further claim that she didn’t know that it was self-service—one would think that the airlines would pre-mix the water, tea bag and condiments, and put it all together in a sealed cup. Did I mention turbulence?
The Ad Damnum Clause
The thing I hate most about these stories is the beginning: “A Smyrna, Tenn., woman is suing Southwest Airlines for $800,000.” Many complaints carry a sentence known as the ad damnum clause, which alerts the court and the other parties about how much they are suing for. Typically, it is not necessary. Most attorneys do what that attorney did—ask for a potentially ridiculously high number. The reason lawyers do that is because, if you ask for a number that is too low, some judges might restrict you to the number you asked for. So, it’s better to be too high than too low. Additionally, at the beginning of the case the parties don’t always understand the case fully—there is much to be done in terms of discovery, which can reveal the actual value of the plaintiff’s claim.
Maryland requires ad damnum clauses in most cases, but this is changing. Maryland Rule 2-305 will be changing in January to restrict the need for including an amount in a lawsuit. The only requirement is that the plaintiff will need to claim over $75,000.00 (so that it’s clear if the case can be removed to federal court). In Maryland, this will prevent those silly headlines.
The other big difference between the Tennessee case and a similar case brought in Maryland is the rule of contributory negligence. Maryland is one of five jurisdictions (along with Virginia, the District of Columbia, Alabama and North Carolina) that still abides by this archaic rule. The theory goes that if the plaintiff is even 1% negligent, she is completely barred from recovery. Other states have different rules—one of the most common would be to allow a plaintiff who was 1% negligent to collect 99% of her damages.
So the question in the airline tea case, if it was a Maryland case, would be whether the plaintiff was negligent in allowing the tea to spill. Did she spill it, or was it caused by something else (turbulence, perhaps?). If she spilled it, then she might be prevented from recovery (sidenote—there is a case before the Maryland Court of Appeals which the top judges might use as a mechanism to abolish this rule).
In a perfect world, personal injury attorneys wouldn’t be needed. When you were injured in an accident, the insurance company of the responsible party would offer a fair settlement,...Read Article