[KCatty]

They made the coffee too hot to the point that it became hazardous material. After that case they changed the temperature of McDonalds coffee to lukewarm. So if you think your McDonalds coffee is shit this bitch is to blame

That "bitch" was a 79 year old woman who ended up with third degree burns over 1/3 of her body as a result of coffee that was literally scalding and would have been too hot to drink for a significant period of time after it had been served. But hey, don't let facts get in the way of your little tirade.


Thank you to those who have chimed in actual legal analysis...like the fact that New York is a pure comparative fault state that allows a plaintiff to recover damages regardless of the extent to which his/her fault contributed to the injuries suffered. Some states only allow recovery where a Plaintiff can show that the defendant's negligence was 50-51% of the cause. And ultimately, the question in these cases isn't about "guilt" or "blame," it's a question about who should bear the financial costs of the injuries suffered by someone who has been harmed. Here, I do believe that, under U.S. legal theory, that should primarily be the USTA.

It should be noted that this was not just a wet floor. These areas are used by people who are sweaty and gross and as a result, these facilities can become a breeding ground for infections. As a result, the floors are treated nightly with a substance that helps to kill said bugs and keep the facilities healthy. The floors had been treated with that substance at the time, making them far more slick than just a wet floor.

As for the Europeans chiming in with their nonsense....it really is a different world. In Europe, you have a far stronger regulatory state. These types of things come with all kinds of rules and regulations. In the U.S., our regulatory state is comparatively minimal, so while you all nickel and dime people with regulatory violations, in the U.S., the threat of these types of suits is all that keeps employers and other public facilities in check for providing safe workplaces, shopping centers, sidewalks, etc. In the grand scheme of things, the costs end up being very comparative....it's just that the legal systems get there in vastly different ways.

I guarantee that, as a result of this action, the USTA will make significant changes to the facilities themselves... lights with motion sensors...creating walkways with greater traction, etc. There will also be changes to the staffing based on the late night scheduling, and likely the time frames in which floors and other surfaces may be treated.

As a result of the injuries suffered by Genie (of whom I'm not particularly a fan) and as a result of this suit, all athletes participating at the US Open and other tournaments in the US will ultimately be safer.

The one thing that makes me cringe in all of this is that Genie was likely advised to travel to Asia and attempt to compete in order to demonstrate damages in her legal case. I really hope I'm wrong about that, but if it is true, it is worrisome. International travel coupled with intense physical activity after a concussion can be very risky health wise. I hope that she has not been pressured to make decisions with potentially grave physical consequences simply to buttress her legal case.

 

[KCatty]

One possible interesting wrinkle that I hadn't considered until discussing with colleagues (I'm a lawyer) is that the USTA may be self-insured, so there may be no insurance company in the background to pick up the tab. Will be interesting to see how this all plays out in the legal system.

 

[KCatty]

Ok, so, first off, it's not a stupid question. It's a question that implies you don't spend a lot of time around lawyers, which, frankly, speaks well of Mario.

Unfortunately, Mario, it IS kinda an irrelevant question. Not totally irrelevant, but mostly. If Bouchard is walking out onto a practice court and face-plants out of her own clumsiness, she's not going to have much of a claim, based on the "reasonable person" standard. But in this case, we're not just talking about a dark room - we're talking about a room where the floor was coated in an unusually-slippery substance. Those words are important, because they imply (A) a hazardous situation, which (B) no reasonable person would expect to be present there. Those factors strongly suggest that the USTA (or at least, their janitorial contractors) created a hazardous situation, and then invited Bouchard in to use the facilities.

It's not much different, legally, from if they had put a live tiger in that dark room and then told Bouchard to go through there to get to her ice bath. Funnier? Yes. But the liability's basically the same.

The reason it's not totally irrelevant is if they can argue that, had Bouchard turned on the lights, what remained would be a situation that no reasonable person would find hazardous. But they've got a big burden of proof there, because (A) again, unusual slippery substance!, (B) no warning about that, like a "WET FLOOR!" sign, and (C) lots of people slip on well-lit floors too, if you grease 'em good enough. Basically, I don't think that would be a winning argument, but it's one that the USTA would try out, and it at least passes the "can you argue that with a straight face?" test.

If you want more detail, go look at my first post on the subject.



"self-insuring" is a bit of a term of art here. What it means is, "we're not going to buy insurance for our risks, and if someone comes along and sues us and we have to pay them something, we'll pay it out of our own pockets". If you, for example, go about your business without buying health insurance, then if some illness or injury befalls you, you'll have to pay for your own medical costs.

It's not uncommon for a very large company or organization to self-insure for risks like Worker's Comp. Or even health insurance, though the administration of such a plan is usually still outsourced. Basically, if I have a huge company such that I have enough homogeneous risks to pool, then why should I pay someone else to take those risks off my hands - maybe I can do better by just keeping them in-house, funding a pool from which to pay claims, and operating it in a lean fashion! The approach is a little old-school, and is a lot more common in big, labor-intensive unionized kind of shops, mostly for employee situations. Anybody who wants to do that has to follow federal law for "Risk Retention". It's not for the faint-of-heart, in other words.

What we're talking about here is called "premises-operations liability". Basically, the risks you have for people coming in to your facilities and doing stuff in the normal course of business. If you run a hardware store and someone knocks a wall of hammers onto themselves, congrats - you now have a premises-operations liability claim coming at you! Basically every type of business that has "premises", whether you're a retail shop, wholesale, transportation, professional services, whatever - has some sort of premises-operations exposure. And basically nobody self-insures for that, because it's very hard to model the finances and plan for the risks involved. Instead of (say) Worker's Comp, where you have thousands of employees providing a homogeneous pool for your risks, you have one (or a handful of) premises, and every incident that causes a claim could be huge. You just don't know. So you buy insurance so you don't have to worry about that risk.

Excellent explanation!!

 

[KCatty]

She didn't just fall down and bang up her knee a little. She had a serious head injury that affects her to this day and could continue to have lasting effects on her tennis career and even what she might choose to pursue beyond that.

Depressing the extent to which some will judge people's choices and even entire cultures based on uneducated assumptions and misinformation.

 

[KCatty]

If the WTA employed the trainers, then they are responsible for their actions when they are on the job.

 

[KCatty]

Those are some sensible shoes.

 

[KCatty]

Eugenie robbing the sports of tennis. Every dollar she gets from this absurd lawsuit would have been spent to benefit tennis for the players, coaches and the audience. What a shame

Not true. Insurance will pay bulk.

 

[KCatty]

Not true. Insurance will pay bulk.

(unless they are self insured. Which I'm now thinking I read that at one point?)

 

[KCatty]

For the record, I've lived in the U.S. for decades, but now spend most my time in southern Europe, in a fringe member of the EU. Bouchard's lawsuit would be laughed out of court here. I actually fell due to a huge hole in a sidewalk on a poorly lit street, but I knew that suing either the municipality or the store that was next to that sidewalk's section would be a waste of time - I even paid my medical expenses for the fall myself, and I know several other people who broke legs etc. in similar situations. As bad as this is for the potential plaintiffs here, the situation in the US has crossed over to the other extreme and Bouchard's case illustrates it.

Well, yes. But the legal and regulatory systems in the United States and Europe simply aren't comparable. In Europe, you have an expansive regulatory scheme that would be completely scoffed upon in the States. Under that system, you have an extensive bureaucracy that enforces regulatory compliance. When bad things happen, the regulators initiate fines against the violating entities as a matter of course.

In the U.S., regulation is comparatively minimal and governmental oversight of regulatory compliance is even more so. The primary mechanism through which regulatory compliance is effectutated is through litigation, where companies choose to behave less because it's the right thing to do and more because the cost, exposure and inconvenience of civil and/or criminal litigation makes it worth their while to do so. And while that means that occasionally certain individuals get what some perceive to be an undeserved windfall, it keeps the overall cost of regulatory compliance below that of Europe when viewed at a macro level.

And while Genie's legal camp was throwing out some big numbers, we'll never know what the jury would have actually calcluated Genie's damages to be. Just because her lawyer claimed that she could possibly beat Serena doesn't mean that the jury would have believed him. USTA's lawyers would have made lots of arguments to the contrary.

What isn't clear is the extent to which USTA's insurers' counsel were participating in the litigation and controlling the litigation strategy. Unless the USTA was self-insured (and honestly, I can't remember if they are or not), the insurance company would be paying out the bulk of the money and therefore would be the ones holding the purse strings. Insurance companies HATE uncertainty and would be inclined to offer a higher settlement if they are concerned the jury could award unreasonable damages.

Bottom line...attacking a legal system in a vacuum without an understanding of the contexts in which it operates is intellectually specious. The U.S. system is far from perfect, but the European model has significant shortcomings as well. The truth is, there is no system that offers a perfect solution for ensuring that our world is safe and that people are fairly compensated when they are harmed by situations within the control of another.

But hey, this is TF-GM.

 

[KCatty]

Errr, so you do not think their insurance premiums will go up or they have to foot some of that cost? There is no such thing as free lunch in business.

Will the cost of insurance go up? Sure. As will my USTA membership fees, and maybe league fees, tournament fees, etc.

As for them footing part of the cost, they would be footing the deductible on their umbrella policy and any amount above their policy maximum. That's the way insurance works.

But this perception that the USTA is the one footing the full settlement amount is incorrect (unless, as I indicated in another post, they were self-insured. That's a different story).

 

[KCatty]

In my experience the US is hardly underregulated compared to Europe in many areas. There are several areas where regulation of businesses is equally stringent (SEC, EPA, product safety, food, pharmaceutical drugs) or equally lax ("natural" supplements, alternative medicine, diet fads) and some areas where regulation is stronger in the US (restaurant health inspections, anti-smoking provisions). At least that's my perception as a non-expert in these areas; I've tried to think of examples where regulation as the consumer sees it is weaker, but I can only think of B2B interactions and education at all levels which tends to be much more decentralized in the US. The litigation seems to operate as an additional layer rather than as a replacement for regulation. Is there evidence that the collective federal / state bureaucracy is really smaller and less prolific in issuing regulations than in European states?




The problem is that the US system allows for ill-defined and unrestricted "pain and suffering" and punitive damages, which may have actually a role to play if used within reason and in special cases, but sometimes lead to very high awards. And because of this, there is little limitation to the risk that a defendant takes if they choose to go to a jury verdict. This creates an incentive for settlements even when there is little value to the plaintiff's claims, or for settlement amounts far exceeding the damages the plaintiff suffered.

This is exacerbated by the prominent role of the jury in the US system, even when the decision relies on technical issues that many in the jury may not understand well (such as Bouchard's expected income from tennis - as an educator in the US system, I can tell you first hand that one of the things most lamented about our incoming freshman class in admission committees was how few of them were exposed to understanding basic probability concepts). The relative back seat given to scientific evidence, and the opportunities for coloring the evidence afforded to the lawyers of the two sides amplify this, and sometimes (often?) lead to spectacular miscarriages of justice, like the breast implant cases of the 1990s.

I think you make a valid point in that no system is currently perfect. But overregulation is not the only answer to the current excesses of the litigation-based system. I'd rather see the litigation system strengthened with provisions for more weight given to scientific evidence, less grandstanding by the lawyers, and strict limits and fleshed-out guidelines for awarding damages.

I had not considered the possibility of a separate insurer for the USTA against this type of liability, so it's good that you pointed it out. If that is the case, the immediate negative effects from this settlement for the USTA partners and beneficiaries will be lessened.

The US and Europe aren't that different in terms of the existence of their regulatory schemes, but they are vastly different in terms of how they handle regulatory COMPLIANCE, which in the US is largely achieved through industry self-regulation and the existence of litigative risk.

Also, in terms of pain and suffering, those awards do have to be rooted in proof of actual damage. The media often oversensationalizes awards and leaves out what the actual damages were, giving the impression that they were somehow undeserved (the McDonald's coffee case is a prime example of this).

 

[KCatty]

Good for her. Why bother with tennis! She is settled for life, and her kids too.

Yeah, $12M not going that far.