Hot Coffee - McDonalds
Bob La Londe
appeal. A recent reference I ran across said that the award was reduced,
but that the basic premise stood. Is this true?
nos...@face.org
The trial judge reduced the $2.86-mill. jury verdict to $640K and the
parties later compromised/settled further before the appeal was
decided.
Among the less unreliable sources for more info, Wikipedia Is Your
Friend, so see
http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants
Mike Jacobs
Yes, it's true. There is a lot more hype than fact in most media
stories about the event, however, and if you are talking about
bloggers or other non-professional media as your "reference", you are
smart to be even more careful to consider your source and seek
independent verification.
One good summary of the Stella Liebeck v. McDonalds case is on a
consumer lawyer's blog at
http://www.caoc.com/CA/index.cfm?event=showpage&pg=facts
I urge you to also fully check out the details of this or any other
case you are interested in, with a RELIABLE primary or secondary
source. Fox News, talk radio, and right-wing bloggers, are not a
"reliable source" because of their constantly having an axe to grind
about so called "frivolous lawsuits." A complex set of facts - each
case is different - cannot be meaningfully reduced to a 30-second
sound bite. To do so makes the claim sound ridiculous, which is
exactly the effect the demagogues using such tactics want. They are
doing the same thing now, trying to kill proposals for health care
reform, that they have been doing for decades to promote tort reform,
and it now seems there is an effort afoot among the right wing to link
the two (tort reform, and health reform) in pressing for a deal in
Congress. Heaven forbid. There are ALREADY laws that prevent
frivolous lawsuits from winning - what these guys are talking about is
taking away the rights of injured citizens to get fair compensation by
"capping" awards for the truly catastrophically injured, and so
forth. And that just isn't fair, OR balanced.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Deadrat
news:h7h14a$jr6$1...@news.eternal-september.org:
> I know this is ancient history, but I had thought it was overturned in
> appeal. A recent reference I ran across said that the award was
> reduced, but that the basic premise stood. Is this true?
Yes. The case is Liebeck v McDonald's. The jury determined that
compensatory damages were $200K, but that Liebeck was 20% at fault and
reduced the amount commensurately to $160K. They also set punitive damages
at $2.7M, apparently adopting the plaintiff's suggestion that two day's
revenue from coffee was a suitable amount. The judge reduced the punitive
damages to three times the compensatory amount, $480K.
Both sides appealed but eventually settled for an undisclosed amount said
to be less than $600K.
Still stands the "basic premise" that if you produce a product that you
know to be hazardous, then a jury may find you liable. Like coffee so hot
that spilling a cup on yourself will induce third-degree burns over 6% of
your skin in 12-15 seconds.
Art S
"Bob La Londe" <nos...@nospam.no> wrote in message news:h7h14a$jr6$1...@news.eternal-september.org...
>I know this is ancient history, but I had thought it was overturned in
> appeal. A recent reference I ran across said that the award was reduced,
> but that the basic premise stood. Is this true?
Barry Gold
Liebeck v. McDonald's Restaurants
http://en.wikipedia.org/wiki/McDonald%27s_coffee_case
The jury awarded $2.86 million. The judge reduced the award to
$640,000, and the parties settled before an appeal was filed. The
amount was not disclosed but is believed to be less than $600,000.
The Wiki article gives an excellent discussion of the issues involving
both negligence (by Stella & by McDonald's) and the punitive damages.
It should be noted that Liebeck originally asked only $20,000 (for
medical costs of $11,000 plus $9,000 presumably for pain & suffering).
McDonald's offered her $800, or less than 10% of her out-of-pocket
medical costs. Even after she retained an attorney, he initially
asked for just $90,000.
It may prove useful to also peruse the talk page, which goes into even
more details about whether or not the suit was "frivolous"(*)
(*) It is my personal opinion that a lawsuit which is not thrown out
on a motion to dismiss, results in a jury awa
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Cy Pres
wrote:
>I know this is ancient history, but I had thought it was overturned in
>appeal. A recent reference I ran across said that the award was reduced,
>but that the basic premise stood. Is this true?
The trial court reduced the award via remittitur, but it stood and was
not appealed. Subsequently, the parties entered into a post-verdict
settlement on unknown terms. There is little precedential value,
however, to jury verdicts or fairly routine trial court decisions.
Contrary to popular opinion, which has been poisoned by a frenzied lie
campaign by "tort reform" mavens, there was nothing whatsoever unusual
about the trial of the case, the jury's decision, or the handling of
any aspect of the case, which was a straightforward liability case.
slide
Timothy Horrigan
> I know this is ancient history, [snip] �Is this true?
It doesn't matter if it is true or not: the myth is more important
than the actual case.
The myth grew out of the real-life story of a case called Liebeck vs.
McDonald's. Liebeck was a 79-year-old woman who in 1992 spilled
coffee on herself just after buying coffee at a drive-through, and
suffered severe burns as a result. Liebeck and her lawyers offered to
settle several times for amounts ranging from $20k to $300k, and a
mediator set the damages at $225k, but the case went to a jury trial
where Liebeck was awarded $2.86M (which has grown to tens of millions
of dollars in the myths inspired by the case.) The judge reduced the
award to $640k and then McDonald's and Liebeck settled out of court
before the case could be appealed.
There actually are standards for how hot is too hot, and her injuries
(which were severe) wouldn't have happened if the coffee had been at a
drinkable temperature. McDonald's stated that they were serving the
coffee at 180 degF (which is too hot to drink) because they had
assumed that no one ever drinks it (or spills it on themselves) until
some time has elapsed--- enough time for the coffee to cool down.
There have been other lawsuits over scalding coffee. Changes have
been made to drive through coffee cups since then: they have been made
safer and they have also been festooned with warning labels.
Stuart A. Bronstein
> It should be noted that Liebeck originally asked only $20,000
> (for medical costs of $11,000 plus $9,000 presumably for pain &
> suffering). McDonald's offered her $800, or less than 10% of her
> out-of-pocket medical costs. Even after she retained an
> attorney, he initially asked for just $90,000.
At one point I chatted with someone who questioned the jurors after
the trial. Apparently at the close of the plaintiff's case, they
would have all voted to give her nothing.
But after the presentation of the defendant's case they found the
people from McDonalds to be arrogant, knew people would be injured by
their policy but felt it was just a cost of doing business.
slide
The issue which still outrages the public isn't the size of the award
but if McDonald's was negligent. Or to put it another way, was the
plaintiff the negligent one for putting the coffee between her thighs so
she could drive away or MacDonald's for serving hot coffee?
You probably practice at the Plaintiff Bar but to the public in general
who may or may not have any legal training, the negligence is clearly
and solely Stella's. Coffee is supposed to be hot and anybody who is
capable of ordering the stuff knows that.
The plaintiff's argument that McDonald's had been warned that their
coffee was very hot many times in the past isn't something lay folks put
any weight in. Coffee is hot as part of its innate characteristic.
Those who patronize McDonald's have told me that the very hot coffee
from that place is part of the reason they enjoy the drink as much as
they do. For all we know, Stella chose to buy her coffee from that place
due to it being nice and hot.
I find it interesting that this case is one of those things accepted as
reasonable only among lawyers who profit from the process. Among the lay
folks, it's a laughable example of a legal system gone far far awry.
Stuart A. Bronstein
> The plaintiff's argument that McDonald's had been warned that
> their coffee was very hot many times in the past isn't something
> lay folks put any weight in.
And the fact that their very hot coffee led to serious injuries in
the past (and they knew it) is of no consequence? I find that hard
to believe.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>The issue which still outrages the public isn't the size of the award
>but if McDonald's was negligent. Or to put it another way, was the
>plaintiff the negligent one for putting the coffee between her thighs so
>she could drive away or MacDonald's for serving hot coffee?
They were more than negligent. They were willful. They openly
admitted that they knew the temperature they served the coffee at was
going to result in injuries, and they did it anyway on purpose.
>You probably practice at the Plaintiff Bar but to the public in general
>who may or may not have any legal training, the negligence is clearly
>and solely Stella's. Coffee is supposed to be hot and anybody who is
>capable of ordering the stuff knows that.
No, coffee is NOT supposed to be hot enough to cause third degree
burns. Coffee made at home in a coffee maker is not that temperature,
and if you spill it on yourself, you are unlikely to suffer any
serious injury at all. I have, in fact, spilled coffee directly from
a coffee machine on myself without any injury whatsoever. That is the
normal temperature of coffee when it is served.
>The plaintiff's argument that McDonald's had been warned that their
>coffee was very hot many times in the past isn't something lay folks put
>any weight in.
The jury was composed of laypeople.
>Coffee is hot as part of its innate characteristic.
>Those who patronize McDonald's have told me that the very hot coffee
>from that place is part of the reason they enjoy the drink as much as
>they do. For all we know, Stella chose to buy her coffee from that place
>due to it being nice and hot.
McDonald's should not be permitted to keep the profits from such
conduct, while socializing the harms which result, which is what
really happens when the public ends up paying for these injuries,
either through an increase in the cost of their private insurance, or
through more taxes to pay for Medicaid when the injured person is
indigent. You seem to think that McDonald's shouldn't bear the burden
for its own actions, but that *I* should instead. Why should society
bear the costs? It isn't society which is choosing to serve coffee
hot enough to cause third degree burns at a DRIVE THROUGH WINDOW.
>I find it interesting that this case is one of those things accepted as
>reasonable only among lawyers who profit from the process.
The jury seemed to find it reasonable, after having listened to all
the facts and evidence, and the arguments from both sides, including
McDonald's Corporation's highly priced and very experienced legal
team, who enraged the jury with their arrogance to the point of
completely blowing their own case.
>Among the lay
>folks, it's a laughable example of a legal system gone far far awry.
I don't find it particularly interesting that people who actually
understand a subject have a different opinion than people who know
little but ten second soundbites from corporate-paid blowhard shills
who often outright lie about the basic facts of the case.
David Chesler
wrote:
> There have been other lawsuits over scalding coffee. �Changes have
> been made to drive through coffee cups since then: they have been made
> safer and they have also been festooned with warning labels.
The warning labels are a big part of this phenomenon that Slide
described:
} I find it interesting that this case is one of those things accepted
as
} reasonable only among lawyers who profit from the process. Among the
lay
} folks, it's a laughable example of a legal system gone far far awry.
It makes perfect sense to me that "hot" covers everything from
"mighty hot for this late in the fall" to "surface of the sun", and
that while coffee should be "hot" (160 degrees) it shouldn't be
"hot" (180 or 190 or 212 degrees.) I've told people that the
precautions we use with a crucible of molten metal are a lot more
stringent than those we use with a cup of hot coffee. (Or put another
way, if a steelworker put a crucible between his legs, he'd be a lot
more than 20% negligent.)
But the warning labels don't add any information. Instead they
suggest that if only the consumer had been TOLD that the contents were
hot, or had been told not to rest the ladder on a pile of thawing
manure, or been given any of the other Happy Fun Ball warnings which
are now present, the seller or manufacturer would not be liable. (Why
else would they bother printing it?) And that IS silly.
Why do they print the disclaimers and warnings? Have any cases
actually been decided on the presence or absence of those labels?
Similarly, a lot of things get blamed on the lawsuits. ("We can't
serve you at this window if you're not in a car because of liability"
- oh, so you'll pay me if I DO get hit here, or if I get injured if I
am in a car here?)
Some of the other cases we hear about make less sense. Sometimes,
especially at the jury level, the awards especially seem outlandish.
Class Action seems particularly in need of reform: the attorneys for
the first-to-get-certified get many real dollars, while the members of
the class get useless coupons. (And the fees are based on the value of
the coupons.)
On the other hand, having been a plaintiff or a potential plaintiff
(over the years I've been involved in one of each, tort, medical
malpractice, and breach of contract), and also the surviving spouse of
someone who grew up in the middle of the Woburn cancer cluster from A
Civil Action (but she had, and died from after-effects of the cure
for, lymphoma, not leukemia, and never joined the lawsuit) I've seen
that it's often too difficult for plaintiffs to get justice, or even
representation, so it's not a matter of simply tuning things down, in
favor of defendants.
--
- David Chesler <che...@post.harvard.edu>
"New York's home, but it ain't mine no more"
Seth
slide <dryads...@xxxxyahoo.com> wrote:
>The issue which still outrages the public isn't the size of the award
>but if McDonald's was negligent. Or to put it another way, was the
>plaintiff the negligent one for putting the coffee between her thighs so
>she could drive away
That doesn't match the facts of this case.
> or MacDonald's for serving hot coffee?
> Coffee is supposed to be hot and anybody who is
>capable of ordering the stuff knows that.
There are many different temperatures that quality as "hot".
>The plaintiff's argument that McDonald's had been warned that their
>coffee was very hot many times in the past isn't something lay folks put
>any weight in.
The fact that I've never seen brought out (and which I'd consider very
important, perhaps determinative) is how often Stella had bought
take-out coffee from MacDonald's prior to that.
> Coffee is hot as part of its innate characteristic.
>Those who patronize McDonald's have told me that the very hot coffee
>from that place is part of the reason they enjoy the drink as much as
>they do.
Their explanation was that they sold take-out coffee very hot so that
it was close to the idea drinking temperature when the customer
arrived at her destination.
Seth
D.F. Manno
> The issue which still outrages the public isn't the size of the award
> but if McDonald's was negligent. Or to put it another way, was the
> plaintiff the negligent one for putting the coffee between her thighs so
> she could drive away or MacDonald's for serving hot coffee?
She wasn't driving, a relative was. The car wasn't moving - the driver
stopped in the parking lot so she could add the cream and sugar.
> You probably practice at the Plaintiff Bar but to the public in general
> who may or may not have any legal training, the negligence is clearly
> and solely Stella's. Coffee is supposed to be hot and anybody who is
> capable of ordering the stuff knows that.
It's not supposed to be _boiling_ hot (McDonald's training manual says
its coffee must be brewed at 195 to 205 degrees and held at 180 to 190
degrees - far hotter than other vendors). It's not supposed to be so hot
that it causes third-degree burns of the groin, inner thighs and
buttocks, requiring skin grafts.
> The plaintiff's argument that McDonald's had been warned that their
> coffee was very hot many times in the past isn't something lay folks put
> any weight in.
McDonald's documents showed that in the decade prior to the suit it had
received at least 700 reports of coffee burns ranging from mild to third
degree, and had settled claims arising from scalding injuries for more
than $500,000.
That's something this layman would put a lot of weight on.
> Coffee is hot as part of its innate characteristic.
> Those who patronize McDonald's have told me that the very hot coffee
> from that place is part of the reason they enjoy the drink as much as
> they do. For all we know, Stella chose to buy her coffee from that place
> due to it being nice and hot.
>
> I find it interesting that this case is one of those things accepted as
> reasonable only among lawyers who profit from the process. Among the lay
> folks, it's a laughable example of a legal system gone far far awry.
Not among lay folks who know the facts of the case, which you apparently
don't.
--
D.F. Manno | dfm...@mail.com
"...the work goes on, the cause endures, the hope still lives, and the
dream shall never die."
Barry Gold
>I find it interesting that this case is one of those things accepted as
>reasonable only among lawyers who profit from the process. Among the lay
>folks, it's a laughable example of a legal system gone far far awry.
Interesting to discover that I don't exist. I am not a lawyer, I
don't work for or profit from the plaintiff's bar. But I think the
basic principle -- that you should be responsible for your negligence
-- *even if* the plaintiff is also partly responsible -- is a good one
and vastly preferable to the old standard.
Under that "contributory negligence" standard, if your injuries are
caused 1% by your own negligence and 99% by the defendant's negligence,
you get nothing at all.
As I have suggested, I think the current "comparative negligence"
standard needs to be adjusted slightly. Perhaps by making the
plaintiff bear _twice_ his/her share of the causation.
While you are lamenting this one, you might want to look at the the
Wikipedia article, especially the "discussion" page. The following
citation from an _insurance industry journal_ may be illuminating:
"A balancing test must be undertaken to decide whether the cost of
changing the policy is outweighed by the likelihood of a large
punitive damage award. But defense counsel must consider the
jury's tendency to act like a policymaking body itself, as it did
in the Liebeck case. A careful review of the plaintiff's
settlement offer should be considered in light of the emotional
impact of the harm in the case at bar. It should be obvious that
when an elderly woman has to undergo skin grafts to repair her
genitals that the defendant should do everything it can to settle
out of court--such a case should never be brought before a jury in
the first place. Liebeck should teach an important lesson to
defendants--never be disrespectful toward a plaintiff." . Daniel M.
Weddle, INSURANCE LAW ANNUAL: A PRACTITIONER'S GUIDE TO LITIGATING
PUNITIVE DAMAGES AFTER BMW OF NORTH AMERICA, INC. V. GORE, 47
Drake L. Rev. 661, 679 (1999)
page
--
Barry Gold, webmaster:
Timothy Horrigan
>
> The issue which still outrages the public isn't the size of the award
> but if McDonald's was negligent. Or to put it another way, was the
> plaintiff the negligent one for putting the coffee between her thighs so
> she could drive away or MacDonald's for serving hot coffee?
>
One minor detail: Ms. Liebeck wasn't driving. It is not even clear if
the car was moving or not.
Daniel R.Reitman
<dryads...@xxxxyahoo.com> wrote:
>The issue which still outrages the public isn't the size of the award
>but if McDonald's was negligent. Or to put it another way, was the
>plaintiff the negligent one for putting the coffee between her thighs so
>she could drive away or MacDonald's for serving hot coffee?
>. . . .
And the people mischaraterizing the case conveniently leave out that
the jury found the plaintiff 25 percent at fault. New Mexico is a
comparative fault state, not a contributory negligence state.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Mike Jacobs
> As I have suggested, I think the current "comparative negligence"
> standard needs to be adjusted slightly. �Perhaps by making the
> plaintiff bear _twice_ his/her share of the causation.
In effect, most states' version of the comparative negligence rule
already does that, by allowing the plaintiff to recover only if her
own negligence was less than about half of the reason why the injury
occurred. The actual language of the comparative-negligence statute
(*) varies, of course, from state to state; some of them say plaintiff
_cannot_ recover if her negligence is "more than" 50% (i.e., at least
51%) and others _permit_ recovery only if her share is "less than" 50%
(meaning, 49% or less).
I'm not aware whether any states make the tipping point exactly 50%,
and actually I'm not sure that would be possible, since if the statute
explicitly makes that number the "zero point" on this number line (pro-
plaintiff if below, pro-defendant if above), it would be neither
positive nor negative, and thus would not lead to a _decision_ but
rather to inevitable followup litigation (appeal) over what it
_means_. And, it's far more likely a jury will write 50% (or some
other divisible-by-5-or-10 percentage) into the blank space on the
verdict form, being as how it is a wild-ass guess in the first place,
rather than some misleadingly precise number like 47% (unless they
_know_ the breakpoint set by law and are gaming the system). That
means, those states which set a 49%-or-less-is-OK but 50%-is-bad
threshold are _less_ plaintiff-friendly forums than those states whose
statutes say up-to-50% plaintiff negligence is still okay (she will
get half or more of her damages awarded), but it takes 51% plaintiff
negligence or more to throw plaintiff out of court with no recovery.
(*) Common law provided that contributory negligence of a plaintiff is
a complete defense to a claim. States which have changed that rule
did so by legislative action.
In such states, if plaintiff is less than half responsible, she can
recover for the actual share of fault caused by the defendant - e.g.
if her damages are worth (according to the jury's evaluation) $100,000
and she is found 35% at fault by the same jury, the defendant will owe
her $65,000, his proportional share of the loss.
Maryland is one of a small handful of states that still adhere to the
old rule of contributory negligence - even slight negligence by the
plaintiff means she gets nothing. But even here, juries often
compromise; if some jurors want to award nothing due to contributory
fault and others want to award full value, by finding for the
plaintiff but awarding lesser damages than they would have if there
were no dispute over liability. Which achieves pretty much the same
result, but in an unpredictable, ad-hoc, non-principled, and therefore
less-jurisprudentially-desirable fashion.
Mike Jacobs
> �But the warning labels don't add any information.
Many of them DO. Frex, those on pharmaceuticals, or industrial
chemicals, which need to identify all the potentially toxic
ingredients, list remedies and antidotes, etc. Even a doctor, or a
graduate chemist, isn't expected to know all that stuff by memory,
even if he _does_ know exactly what's in the stuff.
> Instead they
> suggest that if only the consumer had been TOLD that the contents were
> hot, or had been told not to rest the ladder on a pile of thawing
> manure, or been given any of the other Happy Fun Ball warnings
Thanks for the reminder of that hilarious Saturday Night Live skit.
You do realize it was a parody, right?
> which
> are now present, the seller or manufacturer would not be liable. (Why
> else would they bother printing it?) And that IS silly.
Only if you presume sellers don't give a damn about consumer safety
and print the warnings only to make their paranoid corporate lawyers
happy (and to make plaintiff lawyers unhappy, since they don't get to
sue if there is an appropriate label). What a cynical view of human
nature, all around. It's not silly to warn end-users about dangers
which some of them might NOT be aware of yet. Some of them may be
using the product for the first time. How are they supposed to learn
how to do it if not given any instruction? If a product is dangerous
if used improperly, should we make each purchaser be his own solo test-
pilot, some of them succeeding, but others digging a smoking hole in
the ground? Which is more sensible, even if some experienced and
savvy users DO already know how to use the product properly? IMO the
loudest snorts of derision really derive from the jokester's sense
that "I'm smarter than all these doofuses that prop their ladder bases
into piles of thawing manure." Counting on consumers to be smart and
alert at all times is NOT good corporate safety policy. Safe items
are those which are as idiot-proof as they can reasonably be made,
because there ARE a lot of idiots out here too, and being an idiot is
not (or should not be) a capital offense (Darwin Awards
notwithstanding).
> �Why do they print the disclaimers and warnings? �Have any cases
> actually been decided on the presence or absence of those labels?
Yes, product liability cases have been won on the basis of absence of
appropriate warning labels. There are basically 3 kinds of legal
theories one can pursue on a principle of _strict_ product liability
(in which there is no need to prove negligent conduct by the
defendant, if defendant placed a defective product into the stream of
commerce - the focus is on the condition of the product when defendant
released it, not on the conduct of defendant, which may be
exceptionally hard to prove because it all happens at a distant, and
relatively secret, factory location controlled by defendant):
(1) manufacturing defect (the product as it rolled off the production
line did not meet the maker's own specifications, e.g. a metal piece
contained a crack, or a liquid contained some dangerous impurities
above a certain permissible standard, etc.),
(2) design defect (the product meets the manufacturer's
specifications, but those requirements are unreasonably lax from a
safety standpoint, e.g. the absence of guards around nip points on
moving parts of factory tooling or agricultural machinery where
workers are likely to put their hands, or absence of safety belts, air
bags, padded dashboards, and other such " crashworthiness" safety
features in cars), or
(3) failure to warn (generally, referring to an _unavoidably_
dangerous feature of the product, such as a sharp, rapidly rotating
blade on a lawn mower, or toxic properties of a liquid chemical) if a
proper warning would have prevented the harm (either by alerting the
plaintiff to the danger, whereupon he would be knowingly and
voluntarily assuming the risk of injury if he proceeded, or by
providing specific information on pharmaceuticals and industrial
chemicals about their risks, side effects, antidotes, etc. so that the
harm can either be prevented or alleviated after it occurs.
There is a huge body of law on product liability, so this only
scratches the surface. But, to answer your question, THAT is why
corporate lawyers tell their employers to put certain warning labels
on certain products. It's not merely "defensive lawyering" (like
"defensive medicine") although that DOES play some part in those
decisions - a less cynical view is that some corporations actually do
try to meet their basic legal standard of care toward their customers
by designing safer, rather than shoddy and poorly marked, products.
Yet, it is the ultra-right, those who purportedly are pro-business and
anti-regulation, whose propaganda (with alleged warning-label-
foolishness being a prime source of such) arises from an apparent
assumption that corporations don't give a damn about warning their
customers of the dangers of their products and only do so if dragged
kicking and screaming, and forced to do so by the threat of
"frivolous" lawsuits (fewer of which would have to be brought in the
first place if the manufacturers would just THINK about safety once in
a while, and act responsibly, so people would get hurt less often).
> �Similarly, a lot of things get blamed on the lawsuits. ("We can't
> serve you at this window if you're not in a car because of liability"
That's not blaming it on lawsuits, that's blaming it on lack of
SAFETY. Mixing pedestrian and motor traffic in the same lane is not
a good idea (except where it is unavoidable, as at crosswalks, where
pedestrians notably have the right-of-way), since inevitably,
collisions will happen. There is a separate entrance for walk-in
customers. C'mon, don't you think it's smart for fast-food places to
have such a "house rule"?
> - oh, so you'll pay me if I DO get hit here, or if I get injured if I
> am in a car here?)
They didn't say that. The point of the warning is, if the store did
NOT have such a rule in place, they would not be looking out properly
for the safety of their customers with regard to a FORESEEABLE risk,
and thus MAY be found liable if a pedestrian gets hurt as a result of
the store's actively encouraging or passively permitting pedestrian
and car traffic to mix at the same window. Ergo, they propound such
a rule, which increases safety.
If you get hit by a car while walking up to the drive-thru window
AFTER they have told you it's for "cars only" (perhaps, by a sign
posted at the beginning of the drive-thru lane where everybody coming
in is likely to see it), it's your OWN damn fault, buster (or, at
best, it may be the fault of the guy who hit you), but it's through no
fault of the fast-food place.
As to how you get from there to, "Oh, so you'll pay me if I get hit
here while I'm in a car," I don't see how you made that logical leap.
The house rule is there to protect pedestrians, not motorists, who
have to look out on their own to avoid collisions just as they do
everywhere else.
Barry Gold
>> As I have suggested, I think the current "comparative negligence"
>> standard needs to be adjusted slightly. �Perhaps by making the
>> plaintiff bear _twice_ his/her share of the causation.
Mike Jacobs <mjaco...@gmail.com> wrote:
>In effect, most states' version of the comparative negligence rule
>already does that, by allowing the plaintiff to recover only if her
>own negligence was less than about half of the reason why the injury
>occurred. The actual language of the comparative-negligence statute
>(*) varies, of course, from state to state; some of them say plaintiff
>_cannot_ recover if her negligence is "more than" 50% (i.e., at least
>51%) and others _permit_ recovery only if her share is "less than" 50%
>(meaning, 49% or less).
[specific examples snipped]
I find myself not liking that sharp cutoff.
fault of fault of percent
plaintiff defendant recovery
--------- --------- --------
25% 75% 75%
49% 51% 51%
51% 49% 0%
Using the system I proposed, you wouldn't get that sharp drop-off.
fault of fault of percent
plaintiff defendant recovery
--------- --------- --------
25% 75% 50%
40% 60% 20%
49% 51% 2%
51% 49% 0%
Of course, this may just reflect that fact that I'm an engineer rather
than a lawyer.
I should note that, in the one case where I was a plaintiff and won,
my system would have gotten me nothing (the arbitrator found me 75% at
fault for not paying enough attention to probably visible hazards),
while in CA I got 25%.
Bob La Londe
news:69bcee0f-83aa-4efe...@t13g2000yqn.googlegroups.com...
You should be practicing psychology instead of law. So how does THAT make
you feel.
Fred the Red Shirt
I am a layman.
On Sep 2, 7:24�pm, slide <dryadsdadx...@xxxxyahoo.com> wrote:
> ...
> The issue which still outrages the public isn't the size of the award
> but if McDonald's was negligent. Or to put it another way, was the
> plaintiff the negligent one for putting the coffee between her thighs so
> she could drive away or MacDonald's for serving hot coffee?
She did not drive.
>
> You probably practice at the Plaintiff Bar but to the public in general
> who may or may not have any legal training, the negligence is clearly
> and solely Stella's. Coffee is supposed to be hot and anybody who is
> capable of ordering the stuff knows that.
I am a layman. I disagree.
>
> The plaintiff's argument that McDonald's had been warned that their
> coffee was very hot many times in the past isn't something lay folks put
> any weight in. Coffee is hot as part of its innate characteristic.
Hot is not a binary condition. I am familiar with the relationship
between temperature and how long it takes to produce a third degree
burn.
> Those who patronize McDonald's have told me that the very hot coffee
> from that place is part of the reason they enjoy the drink as much as
> they do. For all we know, Stella chose to buy her coffee from that place
> due to it being nice and hot.
I quit buying coffee at McDonalds because I scalded my lips gums
and tongue trying to drink it.
>
> I find it interesting that this case is one of those things accepted as
> reasonable only among lawyers who profit from the process. Among the lay
> folks, it's a laughable example of a legal system gone far far awry.
I find it interesting that no one critical of the case ever accurately
states
the facts of the case.
mm
>
>Still stands the "basic premise" that if you produce a product that you
>know to be hazardous, then a jury may find you liable. Like coffee so hot
>that spilling a cup on yourself will induce third-degree burns over 6% of
>your skin in 12-15 seconds.
Wasn't this basic premise true long before the McDonald's case. And
they really did violate it big-time. Their coffee was 5 or 8 or
several degrees hotter than every other drive-thru restaurant, served
to people they knew would be in their cars, so if they spilled the
coffee it woudln't be on the table with a little run-off into their
laps, but totally on their laps, with no supply of water to cool them
off.
They made it extra hot because it stayed hot longer on the driver's
way to work, and customers liked that, but aiui, mcd was in a better
position to know, and knew, the risks of coffee so hot. That's why the
other companies didn't make it as hot as mcd did, because everyone in
the business knew.
I have normal friends who thought, based on even the "neutral" news
reports, that it's ridiculous to pay for spilled coffee, but after I
explained the details, they changed their minds.
Mike is right on target with his harangue. If we had space, we could
both make it broader.
These are cases where the saying applies "A partial truth is a total
lie".
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Sep 3, 8:38�am, David Chesler <ches...@post.harvard.edu> wrote:
>> �Similarly, a lot of things get blamed on the lawsuits. ("We can't
>> serve you at this window if you're not in a car because of liability"
>
>That's not blaming it on lawsuits, that's blaming it on lack of
>SAFETY. Mixing pedestrian and motor traffic in the same lane is not
>a good idea (except where it is unavoidable, as at crosswalks, where
>pedestrians notably have the right-of-way), since inevitably,
>collisions will happen. There is a separate entrance for walk-in
>customers.
Except when there isn't. Sometimes, the drive-through is open later.
Many years ago, I went to pay a phone bill to SNET at their
headquarters. In the parking lot, they had a "drive up and pay"
booth. (I was riding a bicycle.) Their agent told me that I had to
go to the 7th floor inside the office building to pay, because I
wasn't driving. He said I wasn't allowed to bring my bicycle with me,
and he wouldn't take responsibility in case it got stolen from his
parking lot. When I asked him for a written statement that I
attempted to pay my bill and was refused, he decided to accept the
payment.
> C'mon, don't you think it's smart for fast-food places to
>have such a "house rule"?
Is it safer to serve a pedestrian in the middle of the night, or to
have him spend 5 times as long at the window arguing? What if he
decides to wait for the next car and ask the driver to get his order
as well?
Seth
Cy Pres
[No walk-up at drive-through.]
>> C'mon, don't you think it's smart for fast-food places to
>>have such a "house rule"?
>Is it safer to serve a pedestrian in the middle of the night, or to
>have him spend 5 times as long at the window arguing? What if he
>decides to wait for the next car and ask the driver to get his order
>as well?
If the pedestrian remains on the property arguing instead of leaving
when told to do so, the police will remove him as a trespasser. If
the establishment fails to enforce its rules, they are useless, and
they will encourage a constant stream of pedestrians breaking the
rules. Having abandoned a rule intended for safety, they will be
liable when people are hit by cars while standing at the window, as
they have effectively made it their de facto rule that pedestrians may
be served at the drive-through.
Silence DoGood
I see nothing to prevent an establishment from placing a pedestrian
window, and nothing to prevent any state from barring any
establishment for selling food from restricting their business to
occupants of automobiles. I rate this as all political.
Mike Jacobs
> > On Wed, 9 Sep 2009 22:02:36 +0000 (UTC), se...@panix.com (Seth) wrote:
>
> > [No walk-up at drive-through.]
> > If the establishment fails to enforce its rules, they are useless, and
> > they will encourage a constant stream of pedestrians breaking the
> > rules. Having abandoned a rule intended for safety, they will be
> > liable when people are hit by cars while standing at the window, as
> > they have effectively made it their de facto rule that pedestrians may
> > be served at the drive-through.
>
> I see nothing to prevent
I assume you are talking only about statutory law, or administrative
regulations. The common law tort of negligence would be the basis on
which an injured plaintiff walk-up customer could sue, if the
restaurant failed to enforce its own rules which it had instituted for
the safety of their customers. And, the decision whether such a
plaintiff would win or lose is not in the hands of a judge or a
bureaucratic agency or a state legislature or any other governmental
body - it is in the hands of a jury of ordinary citizens of the
community, based on well-established general principles of tort law.
> an establishment from placing a pedestrian window,
Nobody said there was such a prohibition. Lots of fast-food places,
in fact, have walk-up service windows - some of them do not even have
a walk-up counter inside (or anywhere to sit down, for that matter).
Think the more old-fashioned "Joe's Hot Dog Stand" business model
instead of hamburger joints on the Roy's Arby's McWendy's Burger Queen
model.
> and nothing to prevent any state from barring
The only thing that would prevent a state from making something
illegal (which is what I presume you meant by "barring" in this
context) is some Constitutional right that would be infringed if the
state did so. There is no Constitutional right for a pedestrian to
be served at the same walk-up window as vehicle traffic. However,
this thread was not talking about state laws that prohibited such a
practice; we were talking about rules set by the establishment itself,
as a reasonable measure to avoid possible injury to walk-up customers
(and, therefore, to fulfill one part of their duty to act reasonably
with regard to the safety of their customers, a breach of which duty
would make them potentially liable for the common law tort of
negligence, since the management could foresee the likelihood of such
an injury eventually occurring if they carelessly allowed vehicular
and pedestrian traffic to mix).
> any establishment for selling food from restricting their
> business to occupants of automobiles.
Putting aside my inability to parse the grammar of this sentence (I
think maybe the word "for" is extraneous or at least confusing,
above), I'm still not sure what you're referring to. There are no
governmental regulations or statutes, one way or the other, that I'm
aware of, regarding the mixing of pedestrian and vehicular traffic at
fast-food service windows. This is, so far, entirely an internal
matter in which the management of each establishment is free to
propound (or not) its own "house rules" separating their pedestrian
customers from drive-up customers.
> I rate this as all political.
You really lost me there, chief. What is political? A restaurant's
acting sensibly and reasonably in order to avoid injury to its
customers, and negligence liability to the company, is being
political? These are internal corporate decisions being made by the
management of these restaurants, mind you, with the advice and
participation of their own lawyers, not as mandated by any government
rule. If what you're saying OTOH is that all these negligence rules
are silly and that we ought to just go back to the good old days of
the 19th century - when the railroad wasn't liable at all if its
workers got crushed between two cars while trying to hook them up with
an old-fashioned, non-automatic non-safety coupler (he had to stand
there while the cars came together and drop in a pin at just the right
moment to keep them from crushing himself) because it was his own darn
fault if he didn't put the coupling pin in at the right time, and when
any quack could market his own patent medicines with heaven-knows-what
ingredients in it and make outrageous claims for its effectiveness, or
when the meat they served at those old-time fast food joints contained
more sawdust than beef, or when we didn't need safety regulations for
steamboats because its pefectly normal for their boilers to blow up
every once in a while and that's nobody's fault - well then, I think
most Americans would disagree with you that this is a partisan
political issue. It's just a matter of common sense and safety,
something we all can agree on.
Silence DoGood
> There is no Constitutional right for a pedestrian to
> be served at the same walk-up window as vehicle traffic. �
I think there is a constitutional issue where only the drive-up window
is opened because the state by licensing is denying equal protection
to those who cannot drive.
I do not agree with your thesis about safety. I think they are worried
about loitering and littering.
Let me ask it this way, is there anywhere in this country licensed and
open for business restricted to those who can drive through?
Will this be the new mechanism toward legal discrimination directed at
homeless, handicapped, elderly, impoverished?
What's next? Will the shopping mall require you to park a car in their
garage and pay for the priviledge?
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>Let me ask it this way, is there anywhere in this country licensed and
>open for business restricted to those who can drive through?
There is at least one liquor store that sells only to people who can
show a drivers license. ("What are they afraid of? Someone might
drink and not drive?") IIRC, the license has to be from the same
state the store is in.
>What's next? Will the shopping mall require you to park a car in their
>garage and pay for the priviledge?
They can require paying for parking whether or not you actually do
so. That's been done before. (For one concert I remember,
non-students who bought tickets had to pay for parking, even those of
us (like me) who lived within walking distance of the venue and didn't
own a car.)
Seth
Silence DoGood
> In article <ee1c8d8c-0605-4bed-9962-bb7dc4f92...@a32g2000yqm.googlegroups.com>,
> Silence DoGood �<Silence_DoG...@angelic.com> wrote:
>
> >Let me ask it this way, is there anywhere in this country licensed and
> >open for business restricted to those who can drive through?
>
> There is at least one liquor store that sells only to people who can
> show a drivers license. �("What are they afraid of? �Someone might
> drink and not drive?") �IIRC, the license has to be from the same
> state the store is in.
Liquor stores are required by law to check ID and not sell to those
who are underage. I believe in most states those who cannot drive can
apply for an identification card which can legally be used in lieu of
a driver's license. Those who refuse to accept such would be in
violation of the law. Note that in your example, service would be
refused inside as well as at the drive-through window. Furthermore, it
seems quite likely that significant numbers of people have no license
or invalid licenses, but as long as they have a car (and money) they
get to eat. Note also that I am not objecting against an establishment
that makes foot customers come inside, only against the case where
only the drive-through is open.
> >What's next? Will the shopping mall require you to park a car in their
> >garage and pay for the priviledge?
>
> They can require paying for parking whether or not you actually do
> so. �That's been done before. �(For one concert I remember,
> non-students who bought tickets had to pay for parking, even those of
> us (like me) who lived within walking distance of the venue and didn't
> own a car.)
>
> Seth
It seems to me you are proving my case. They let you in without a car.
As to whether this breached a law or contract might boil down to
whether the advertisments said "plus tax and parking fee" or some such
and if you requested a refund on the ticket and had been denied. Also,
you may have waived your case against them by paying the parking fee.
This sort of brings up the essential glories of capitalism. You are
perfectly free not to attend concerts by this performer, promoter, or
concert venue. If you were defrauded, you have a right to sue. If you
feel their advertising was intentionally misleading, you can file a
false advertising complaint.
As you know, all this might accomplish little, but I still distinguish
such behavior as outside the realm of "perfectly legal" which is what
we hear claimed for establishments which feed only those who arrive in
cars.
Robert Bonomi
Silence DoGood <Silence...@angelic.com> wrote:
>
>open for business restricted to those who can drive through?
Yes there is. I know of several privately owned toll-bridges with no
provision for pedestrians.
Shall we mention racetracks and drag-strips -- the actual raceway itself,
not the spectator seating, that is?
Not to mention any _number_ of toll-roads (although those are almost all
governmentally operated.)
Don Priebe
>>Let me ask it this way, is there anywhere in this country licensed and
>>open for business restricted to those who can drive through?
Local banks whose drive-thrus are open before and/or after the lobby hours
will not serve walk-ups. (The ATMs on the side of the building will of
course.)
--
Don in Upstate NY
Seth
>> There is at least one liquor store that sells only to people who can
>> show a drivers license. �("What are they afraid of? �Someone might
>> drink and not drive?") �IIRC, the license has to be from the same
>> state the store is in.
>
>Liquor stores are required by law to check ID and not sell to those
>who are underage.
I believe they are required not to sell to those who are underage. I
know that if they are required to check ID, every liquor store I've
been in for the past decade has been violating the law.
> I believe in most states those who cannot drive can
>apply for an identification card which can legally be used in lieu of
>a driver's license.
That is correct.
> Those who refuse to accept such would be in
>violation of the law.
Can you cite such a law? The liquor store I've been told about _does_
refuse to accept such an ID card.
>> >What's next? Will the shopping mall require you to park a car in their
>> >garage and pay for the priviledge?
>>
>> They can require paying for parking whether or not you actually do
>> so. �That's been done before. �(For one concert I remember,
>> non-students who bought tickets had to pay for parking, even those of
>> us (like me) who lived within walking distance of the venue and didn't
>> own a car.)
>
>It seems to me you are proving my case. They let you in without a car.
Though a shopping mall might be inaccessible except by car.
Seth
Silence DoGood
> Though a shopping mall might be inaccessible except by car.
...only if they actively interfere with you for walking in via the
same path as people drive.
-
In regards to an earlier discussion about a parking fee being required
to attend a concert, I'm thinking the parallel might be if you tried
to get in with your ticket, and the gatekeeper demanded that you show
a receipt for paid parking, so you went back to the auto entrance to
pay for parking and they refused to serve you since you were not in a
car and you were unable to get a refund on the concert tickets.
-
Upon boarding an airplane or cashing a check, a customer may be
required to present a "government issue picture ID". If, as
gatekeeper, you claim the right not to accept other than a driver's
license, what law would suppport you?
Barry Gold
whether a pedestrian can be served at certain places that mostly cater
to drive-up customers.]
I suppose it could happen. I've never actually seen one that didn't
have a pedestrian entrance _somewhere_, but who knows... Ummm... if
it was built or substantially modified after the ADA was enacted, it
would have to be accessible by the handicapped, presumably including
those who cannot drive. So that implies at least one pedestrian
entrance that has a wheelchair ramp.
Of course, that's for a shopping mall -- a "place of public
accomodation". Not every business qualifies. I've seen lawyer's
offices that are "walk ups", for example. And I'd guess you could
have a "drive-thru" office for those who want a really quick consult,
without making provision for pedestrians.
Stuart A. Bronstein
>>Though a shopping mall might be inaccessible except by car.
>
> I suppose it could happen. I've never actually seen one that
> didn't have a pedestrian entrance _somewhere_, but who knows...
I'd imagine that they'd need to have a pedestrial exit for emergency
purposes. I think it would be silly to have something that can be
used as a pedestrial entrance and then lock it.
> Of course, that's for a shopping mall -- a "place of public
> accomodation". Not every business qualifies. I've seen
> lawyer's offices that are "walk ups", for example. And I'd
> guess you could have a "drive-thru" office for those who want a
> really quick consult, without making provision for pedestrians.
Well, that's a whole other story. If someone can't afford to drive a
car to my office, he certainly can't afford my exorbitant fees.
Cy Pres
<spam...@lexregia.com> wrote:
>bg...@nyx.net (Barry Gold) wrote:
>> Seth <se...@panix.com> wrote:
>>>Though a shopping mall might be inaccessible except by car.
>> I suppose it could happen. I've never actually seen one that
>> didn't have a pedestrian entrance _somewhere_, but who knows...
>I'd imagine that they'd need to have a pedestrial exit for emergency
>purposes. I think it would be silly to have something that can be
>used as a pedestrial entrance and then lock it.
There are many businesses in high crime areas which do not allow
customers to enter at all. They deal with customers solely through a
slot under a pane of bulletproof glass or Lexan, with an even tougher
kind of armor that can be lowered in the event of an attack.
I think in general that businesses may legally restrict access to
their business in any way they choose, so long as this does not
discriminate against a protected class or violate other laws or
regulations. People without cars aren't a protected class.
Silence DoGood
> without making provision for pedestrians.
I was not talking of making provision for pedestrians, but of denying
food and beverage to someome who approaches the drive-through window
on foot at his own risk, nor am I objecting to sending a pedestrian
inside, setting up a window not subject to traffic, or temporarily
blocking vehicles.
Those who think it's too risky to serve the customer might want to
think about other risks. If a diabetic dies, a drunk gets killed
walking home sans coffee, or the victim of a crime or breakdown can
demonstrate serious harm from lack of service and I'm on a jury, rest
assured, I'll be listening carefully. They'd better be prepared to
show that laws and licensing specifically allow them to discriminate
on the basis of not being the driver of a vehicle. If they
additionally put the Mom & Pop diner next door out of business with
deliberately unfair competition, due to not having to provide
security, I could be swayed toward serious punative damages.
Suppose being barred from one location, a pedestrian attempts to cross
a busy street to get to a place that will serve him or her and is
struck?
In the case of a walk-up law office. My expectation as potential juror
would be that the wheelchair person could call and set up a
consultation elsewhere or the attorney could arrange assistance to
getting the client up the stairs. I might also listen to his claim
that there was an equally competent and available attorney on the
ground floor, but if it appears in any way that the attorney was
deliberately avoiding serving legally entitled customers, I'm not
going to like him.
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>Upon boarding an airplane or cashing a check, a customer may be
>required to present a "government issue picture ID". If, as
>gatekeeper, you claim the right not to accept other than a driver's
>license, what law would suppport you?
Airplanes are a special case, because they're seriously bounded by
laws.
For cashing a check, a company can have rather arbitrary rules. To
say it can't, the burden of proof is on your to find a law disallowing
that policy.
Seth
Seth
>> Seth <se...@panix.com> wrote:
>
>>>Though a shopping mall might be inaccessible except by car.
>>
>> I suppose it could happen. I've never actually seen one that
>> didn't have a pedestrian entrance _somewhere_, but who knows...
>
>I'd imagine that they'd need to have a pedestrial exit for emergency
>purposes. I think it would be silly to have something that can be
>used as a pedestrial entrance and then lock it.
Many places have emergency exits that are generally locked.
The emergency exit might lead to the parking lot, while the whole
thing (parking lot + mall) is accessible only by vehicle, via a
purpose-built exit from a restricted access highway.
For that matter, there are many stores accessible only by motor
vehicle: those at rest stops on highways.
Seth
Stuart A. Bronstein
>>I'd imagine that they'd need to have a pedestrian exit for
>>emergency purposes. I think it would be silly to have something
>>that can be used as a pedestrial entrance and then lock it.
>
> Many places have emergency exits that are generally locked.
But how many have every exit locked? I've never seen one. That
was the point.
> The emergency exit might lead to the parking lot, while the
> whole thing (parking lot + mall) is accessible only by vehicle,
> via a purpose-built exit from a restricted access highway.
If it's an indoor parking lot that might be accurate. But even
then most parking lots are accessible by pedestrians.
> For that matter, there are many stores accessible only by motor
> vehicle: those at rest stops on highways.
In every one of those rest stops I've seen the parking lots have
been open, outdoor lots. If there were a pedestrian he could
easily get there without a car.
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>In the case of a walk-up law office. My expectation as potential juror
>would be that the wheelchair person could call and set up a
>consultation elsewhere or the attorney could arrange assistance to
>getting the client up the stairs. I might also listen to his claim
>that there was an equally competent and available attorney on the
>ground floor, but if it appears in any way that the attorney was
>deliberately avoiding serving legally entitled customers, I'm not
>going to like him.
But nobody is legally entitled to the services of any particular
attorney. One could easily have a practice that involves only
referrals from specific sources.
For that matter, the real estate agent I used to buy my current home
operates that way. He only accepts clients by referral from previous
clients. (I got the impression he's semi-retired and gets enough
business that way not to bother with anything else.)
Seth
Wes Groleau
> Those who think it's too risky to serve the customer might want to
> think about other risks. If a diabetic dies, a drunk gets killed
> walking home sans coffee, or the victim of a crime or breakdown can
> demonstrate serious harm from lack of service and I'm on a jury, rest
> assured, I'll be listening carefully. They'd better be prepared to
> show that laws and licensing specifically allow them to discriminate
If the attorneys think you are a person who listens carefully to
evidence and uses logic to evaluate it, you will not likely be
on the jury. If the evidence and issues are clear enough that
one side doesn't have much hope, that side wants jurors who
can be swayed by emotion and theatrics. Often circumstances
are such that both sides want that kind.
--
Wes Groleau
He that complies against his will is of the same opinion still.
-- Samuel Butler, 1612-1680
Barry Gold
>Those who think it's too risky to serve the customer might want to
>think about other risks. If a diabetic dies, a drunk gets killed
>walking home sans coffee, or the victim of a crime or breakdown can
>demonstrate serious harm from lack of service and I'm on a jury, rest
>assured, I'll be listening carefully.
You can listen carefully. BUt you should *also* listen carefully to
the judge's instructions. He will tell you that, in order to award
damages for this alleged action (or lack of action), you must first
find that the defendant had a *duty* toward the alleged victim. That's
something that the plaintiff must prove (by preponderance of
evidence).
You should not let your sympathy for the defendant or your dislike of
places that serve only people in cars late at night affect your
decision as a juror.
> They'd better be prepared to
>show that laws and licensing specifically allow them to discriminate
>on the basis of not being the driver of a vehicle.
You have it exactly backwards. This is not WWII Germany, where "alles
was nicht pficht ist, ist verboten" (Everything that is not compulsory
is forbidden). The is the US, and the rule is, you can do anything
that is not explicitly forbidden.
Of course, a "place of public accomodation" must obey the ADA and not
discriminate against the disabled. But even then, they would have
only the duties under the act. "Consequential" damages (e.g., from
a pedestrian trying to cross the street) may not apply.
>If they
>additionally put the Mom & Pop diner next door out of business with
>deliberately unfair competition, due to not having to provide
>security, I could be swayed toward serious punative damages.
If you express this attitude during voir dire, you will be challenged
for cause and excused.
>Suppose being barred from one location, a pedestrian attempts to cross
>a busy street to get to a place that will serve him or her and is
>struck?
Was the lack of a walk-up window a "proximate cause"? Or was it
caused by the negligence of the driver who failed to stop for the
pedestrian in a crosswalk? Or the negligence of the pedestrian who
crossed in the middle of the block rather than walking to a
crosswalk?
>In the case of a walk-up law office. My expectation as potential juror
>would be that the wheelchair person could call and set up a
>consultation elsewhere or the attorney could arrange assistance to
>getting the client up the stairs. I might also listen to his claim
>that there was an equally competent and available attorney on the
>ground floor, but if it appears in any way that the attorney was
>deliberately avoiding serving legally entitled customers, I'm not
>going to like him.
Liking him should have nothing to do with your decision as a juror.
You have so many prejudices -- and so many of them contrary to
established law -- that if you showed up for a jury and admitted that
you were "Silence DoGood" (or my background check showed that), I
would bring in a printout of your postings and challenge you for
cause. And if that were denied, I would use one of my peremptory
challenges on you.
Robert Bonomi
Rest stops on Interstate highways are accessible from the highway only.
Use of the interstate highway system is restricted to motor vehicles only
(entry ramp restriction notices expressly forbid 'motor scooters, motorized
bicycles, and pedeestrians'), and they _must_ be capable of maintiing the
minimum posted speed of 40 mph (this means no farm implements, or other
'slow moving vehicles').
Thus, one cannot, legally, get _to_ the rest stop itself, let alone to the
store within the rest stop, unless one arrives by motor vehicle. Admittedly,
one usually exits from the vehicle in the parking lot, and proceeds _on_foot_
into the store. but you cannot get to the location as a pedestrian.
That said, such situations _are_ a 'strecth' to fit the OP's question.
While, something like a privately owned toll-bridge (yes, there _are_ a fair
number of such in the U.S.) without a pedestrian path is an _exact_ match
to that which the OP didn't believe existed. Any toll-road that forbids
pedestrian access is also a 'near match', although they are almost exclusively
opeated by governmental entities, rather than private business.
Mike Jacobs
> Silence DoGood <Silence_DoG...@angelic.com> wrote:
[what good Mr. DoGood would do if _he_ were on a jury]
> You can listen carefully. BUt you should *also* listen carefully to
> the judge's instructions.
Yep.
> He will tell you that, in order to award
> damages for this alleged action (or lack of action), you must first
> find that the defendant had a *duty* toward the alleged victim.
Well, actually, the judge will _tell_ the jury, as a matter of law,
_what_ the defendant's duty is, if the case gets that far. In a
negligence case, the defendant's duty is to act as a reasonable
prudent person would act under all the relevant circumstances, taking
due care to avoid any act or omission that foreseeably would incur an
unreasonable risk of harm to others. That is the _legal_ standard.
It is then up to the jury to decide the _factual_ issues, e.g. what
particular acts under all the circumstances shown by the evidence
constitute "due care," and how significant the foreseeable harm has to
be, in relation to the burden of guarding against it, for the risk of
that harm to be considered "unreasonable."
> That's
> something that the plaintiff must prove (by preponderance of
> evidence).
What the jury is being asked to find, as a factual matter, based on
the preponderance of the evidence, is whether the defendant _met_ his
duty to act as a reasonable person should act under all the
circumstances shown by the evidence, _not_ whether he _has_ such a
duty. The former is a factual question for the jury; the latter is a
question of law, to be decided by the judge, who will so instruct the
jury (if there are any factual issues remaining to be tried, that is,
after the judge has decided as a legal matter whether the defendant
has any duty at all under the circumstances).
If the circumstances are such that the judge believes _no_ reasonable
jury could find that defendant's acts or omissions breached the
applicable standard of care, then the case may be ripe for dismissal
or summary judgment, in which case the judge could rule as a matter of
law that no actionable duty exists under the circumstances.
I would hazard a guess that, in the case of a fast-food joint that has
a "drive-up-only" window, at which it refuses service to pedestrians
(the situation presented long ago in this thread), any sensible judge
would rule that the proprietor had _no_ duty in tort to allow walk-up
customers at that window if, frex, the circumstances of the claim are
anything like Mr. DoGood's hypotheticals - a diabetic who dies because
he is desperate for sugar (or whatever) and cannot get served at the
drive-up window, or a customer who gets hit by a car while crossing
the street to a competitor's restaurant because the defendant
restaurant refused to serve him at their drive-up window. The risk
of such a harm is too attenuated, too remote from anything the
defendant itself did, and subject to too many intervening variables,
to ever make it legally reasonable to impose a duty on the proprietor
to allow walk-ups in order to prevent that kind of harm. Those kind
of cases would never even get presented to the jury; so, even though
Mr. DoGood is eager to sit on one, he will never get his chance to
show a thing or two and "send a message" via his punitive-damages
verdict, to that hamburger joint that discriminates against
pedestrians.
> You should not let your sympathy for the defendant
I think you meant "for the plaintiff," Barry, if you are referring to
Mr. DoGood's examples. But yes, the juror should not be affected by
sympathy for _either_ party, or by invidious dislike for either party,
as the judge is likely to so instruct them.
> or your dislike of
> places that serve only people in cars late at night affect your
> decision as a juror.
Well, though, _IF_ there were a duty to serve people who are not in
cars (there _isn't_, but, just sayin'), Mr. DoGood's ire at
proprietors who _refuse_ to serve such people would be perfectly
proper. Not only would the jury be free to base its decision on such
ire, but, more to the point, the plaintiff's attorney would be free to
ARGUE that it was OK for them to do so - which is the only place where
judicial oversight usually comes in on such an issue, since no one,
not even the judge, is entitled to listen in on what is _actually_
said in the jury room, and whatever the jury decides is unassailable
on appeal by a collateral attack based on allegedly improper
discussions during deliberations.
The prohibition on "sympathy" is meant to exclude from jury
consideration any matters (outside the evidence) that have NOTHING TO
DO WITH THE MERITS of the case - e.g., as some defense lawyers try to
get away with in car crash cases, making their negligent-driving
defendants dress shabbily and look poor when they come to court, or
saying things giving the false impression to the jury that any
judgment will come out of the poor blind widow-lady defendant's own
pocket (it won't - she has AUTO LIABILITY INSURANCE which has
stubbornly refused to pay plaintiff a reasonable settlement, or else
the case never even would have gotten as far as a trial). THAT would
be an improper attempt to elicit sympathy. But, sympathy for the
VICTIM OF A TORT, because the DEFENDANT DIDN'T DO WHAT HE WAS SUPPOSED
TO DO and becase the victim was horribly disfigured, or killed, or
whatever, AS A RESULT of defendant's act or omission, goes to THE
MERITS OF THE CLAIM and is perfectly proper; it is exactly what the
jury is there to decide.
> > They'd better be prepared to
> >show that laws and licensing specifically allow them to discriminate
> >on the basis of not being the driver of a vehicle.
>
> You have it exactly backwards. This is not WWII Germany, where "alles
> was nicht pficht ist, ist verboten" (Everything that is not compulsory
> is forbidden). The is the US, and the rule is, you can do anything
> that is not explicitly forbidden.
Barry has it right. There is no law _against_ discriminating against
pedestrians. Being a pedestrian is not a "protected class" under any
anti-discrimination law I know of.
The _plaintiff_ has the burden of showing that what the defendant did
or failed to do amounted to a violation of law or a breach of the
standard of due care. Defendant is thus presumed "innocent until
proven guilty."
> Of course, a "place of public accomodation" must obey the ADA and not
> discriminate against the disabled. But even then, they would have
> only the duties under the act. "Consequential" damages (e.g., from
> a pedestrian trying to cross the street) may not apply.
Kee-o-rect in the particular example, but that doesn't mean
consequential damages are _never_ appropriate in an ADA claim. But,
it's true that, in an ADA claim as in a plain negligence claim, the
plaintiff has the burden of proving that the damages suffered are
_within_ the scope of the defendant's duty as outlined by the judge,
and that such damages were _proximately_ caused by defendant's act or
omission.
> >If they
> >additionally put the Mom & Pop diner next door out of business with
> >deliberately unfair competition, due to not having to provide
> >security, I could be swayed toward serious punative damages.
>
> If you express this attitude during voir dire, you will be challenged
> for cause and excused.
Oy gevalt, yes! I don't think even the _plaintiff_ would want such a
loose cannon on her jury, since if Mr. DoGood were allowed to sit
after rendering such an opinion in voir dire, he would be virtually a
walking issue for appeal, getting the verdict overturned and making
her have to try the case all over again with a new jury.
Now, that doesn't mean you are not entitled to have, or express, such
an opinion, Mr. DoGood. As Barry said above, this is not a fascist
dictatorship but a free and liberal country, meaning we honor and
tolerate a _diversity_ of opinion, from the most mundane and centrist
to those at the most extreme points on the standard-deviation bell
curve in both left and right directions. But, once you own up to
having such an opinion and show that it would bias your decision in
favor of or against one of the parties in a particular case, one or
both of the parties could ask that you be excused from serving on
their particular jury. Although, perhaps, if your opinions in that
regard would make no difference to you if you were to serve on some
OTHER jury, on which you would be perfectly capable of rendering a
fair, unbiased verdict based only on the evidence placed before you,
you would be allowed to sit on THAT jury.
As I have mentioned in other threads, more than once, having opinions
and biases does not make someone a bad person, or undesirable, in any
sense of your value as a human being. We _ALL_ have biases and
prejudices based on our own experience as well as based on our
cultural background and based on those things each of us have been led
to believe are true and which form the foundation of everything a
person does - we all have "core beliefs" and those are not going to
change just because we are asked to serve on a jury. The function of
voir dire (jury selection) is to get people to honestly _admit_ to
what their core beliefs are and to how those beliefs would affect
their decision in the particular case, to avoid any _unconscious_ as
well as conscious bias in the final result. Those who then recognize
their biases and agree they can put those beliefs aside and render a
fair verdict, may be allowed to serve. Those who don't appear to
"get it," and whose biases are likely to affect the outcome, will be
excused from that particular jury.
> >Suppose being barred from one location, a pedestrian attempts to cross
> >a busy street to get to a place that will serve him or her and is
> >struck?
>
> Was the lack of a walk-up window a "proximate cause"? Or was it
> caused by the negligence of the driver who failed to stop for the
> pedestrian in a crosswalk? Or the negligence of the pedestrian who
> crossed in the middle of the block rather than walking to a
> crosswalk?
Perhaps all of the above could be considered a "but for" cause, i.e. a
"cause in fact" of the harm; but a cause is only a "proximate" cause
if its link to the harm is so direct, so foreseeable, that it is
socially considered _reasonable_ to hold the defendant liable for the
harm that eventually occurred.
This is a fascinating, hall-of-mirrors part of the law, but in a
nutshell, the jury standard for finding proximate causation is the
FLIP SIDE of the judge's standard for determining whether there is any
duty in the first place, i.e. whether the harm was so foreseeable
under the circumstances that defendant "should" have done something
about it. As we all know from the groovy 60's gurus, "everything is
connected, the universe is one," and every little thing we do, via the
"butterfly effect," may affect the entire rest of the universe forever
in untold ways. The karmic waves just go on and on. But, that
grooviness is not enough, for a practical application of hard-headed
LAW that would allow the State to FORCE SOMEONE TO PAY someone else
for a particular harm traced to a particular cause. A jury finding of
proximate causation is thus an amalgam of _actual_ causation, in the
Rube-Goldbergian or Karmic sense, along with a social decision that,
at some point, the effects of an action are so remote that it is not
reasonable to ask the defendant to be the one to PAY plaintiff for his
minimal role in causing that harm.
Silence DoGood
>What the jury is being asked to find, as a factual matter, based on
>the preponderance of the evidence, is whether the defendant _met_ his
>duty to act as a reasonable person should act under all the
>circumstances shown by the evidence, _not_ whether he _has_ such a
>duty.
One assumes a duty by applying for a restaurant license and WAIVES a
whole bunch of rights in the process, including the right of health
inspectors to search and cite without warrant.
I would gather from what we see here that there may not be a single
jurisdiction that has passed ordinances or legislation on the matter
of restricting service to those in arbitrarily selected motorized
vehicles.
If such an ordinance is passed, I suggest the permission come with a
heavy tax and serious restrictions, say, after 9pm only, and only for
60 minutes on any given day. In such case a judicial administrator
might give summary judgment to a defendant who might well appeal the
legality of the ordinance, a "legal" issue logically presented to an
appellate court rather than to a jury.
Otherwise, the issue needs to be presented to a jury of twelve who
must be assumed to be reasonable, or the person on the bench needs to
go bye bye.
My guess is, the growing practice is downright illegal in most
jurisdictions, but the route to enforcement is not clear, and we are
really not sure who is exercising the prosecutorial indiscretion. Can
you charge a restaurant with disorderly conduct? ...conduct unbecoming
the corporate mascot, perhaps?
Mike Jacobs
wrote:
> On Oct 30, 10:50�am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> >What the jury is being asked to find, as a factual matter, based on
> >the preponderance of the evidence, is whether the defendant _met_ his
> >duty to act as a reasonable person should act under all the
> >circumstances shown by the evidence, _not_ whether he _has_ such a
> >duty.
>
> One assumes a duty by applying for a restaurant license
That license imposes a duty to obey the statutes and regulations
pertaining to the licensed restaurant business, _not_ a general duty
in tort to all members of the public, which exists (or doesn't exist,
as to some thing that some plaintiff particularly alleged a reasonable
person "should" do under the circumstances) whether the alleged
tortfeasor is licensed or _not_. Frex, the tort duty to drive safely
applies to licensed as well as unlicensed drivers and is owed to the
public at large, not just to the licensing authority.
Did you forget, sir, that many weeks ago in this thread, several of us
pointed out that the rationale behind fast-food stores' in-house "no
pedestrians at drive-up windows" policies was PEDESTRIAN SAFETY, and
that the restaurants with such rules made up those rules in the
interest of keeping their pedestrian customers from getting run over
by customers in cars? No government AFAIK _forces_ any restaurant to
have a no-pedestrians policy, but conversely, no government
_prohibits_ it, either.
I have a very hard time figuring out where you are coming from on this
issue. If you are a liberal, left-wing, pro-civil-rights, anti-
discrimination type of person (I doubt it), you would _want_ the
government to intervene and prohibit certain types of invidious
discrimination, but anti-pedestrianism is NOT the same thing as
discriminating against members of any "protected class" since we are
_all_ pedestrians at some time or another. OTOH the leftie-liberal
would _also_ be in favor of government intervention to uphold _safety_
standards (car design, consumer products, food and drug, OSHA, etc)
and would, presumably, want the statute to _require_ separation of
pedestrian and vehicular traffic.
OTOH if you are a right-wingnut, "liberty or death," "live free or
die" type of guy, ISTM you _wouldn't_ want government intervening
_at_all_, and would want it to be up to each restaurateur to decide
_his_own_ walk-up policy with regard to his drive-up window (if he has
one).
So, I have no idea on what shade of the political spectrum any
coalition would support a "mandatory pedestrian access" law re:
restaurant drive-up windows. IMO you are a Party of One, Sir.
Would you care to be seated at a booth near the window, or near the
kitchen? Or just stand at the outside service window?
Presumably, a local or state legislature _could_ make it illegal, by
statute, to refuse service to pedestrians at a drive-up window. That
is within their Constitutional power, although IMO it would be a
stupid law. If that ever happens (and I'm not aware of _any_ state
where this _is_ already the case), I predict it will mean the end of
the drive-up window - either that or, it will mean the end of
exclusively walk-in service areas as well. Gee, maybe it won't be
illegal anymore for some Hell's Angel to drive his Harley right up to
the inside counter at the neighborhood McD's, scattering kids and
Happy Meals right and left across the Ronald McD chairs, and order a
burger to go.
> and WAIVES a
> whole bunch of rights in the process, including the right of health
> inspectors to search and cite without warrant.
Yes, but what does that have to do with whether the restaurateur has
the right to refuse service to pedestrians at his drive-up window?
> I would gather from what we see here that there may not be a single
> jurisdiction that has passed ordinances or legislation on the matter
> of restricting service to those in arbitrarily selected motorized
> vehicles.
Yes, I would agree with that likelihood. At least, I'm not aware of
any.
> If such an ordinance is passed, I suggest the permission come with a
> heavy tax and serious restrictions, say, after 9pm only, and only for
> 60 minutes on any given day. In such case a judicial administrator
> might give summary judgment to a defendant who might well appeal the
> legality of the ordinance, a "legal" issue logically presented to an
> appellate court rather than to a jury.
It would be a bizarre and oppressive state that would tolerate such a
regime, IMO.
> Otherwise, the issue needs to be presented to a jury of twelve who
> must be assumed to be reasonable, or the person on the bench needs to
> go bye bye.
Are you saying that NO issue should ever be decided by the judge as a
matter of law? That _every_ issue must be presented to a jury? That
contradicts what you said just ONE SENTENCE AGO, Sir, in which you
declared the likelihood of summary judgment on such an issue. I'm
thinking that maybe you don't know _what_ position you want to take on
this matter.
> My guess is, the growing practice is downright illegal in most
> jurisdictions,
A few sentences ago you said, and I agreed, that "there may not be a
single jurisdiction that has passed ordinances or legislation on the
matter of restricting service to those in arbitrarily selected
motorized vehicles." Now, you are saying the opposite - that you
think it's already "_illegal_ in most jurisdictions" to refuse service
in that manner. Which position DO you espouse, Sir?
> but the route to enforcement is not clear, and we are
> really not sure who is exercising the prosecutorial indiscretion.
No prosecutor has discretion to prosecute somebody for something that
is NOT ILLEGAL. It is not illegal, anywhere in USA AFAIK, for a
restaurant to have a drive-up window where they refuse service to
pedestrians.
> Can you charge a restaurant with disorderly conduct?
No. Although, the proprietress of a brothel is sometimes charged
with running a "disorderly house," That is not the same thing (and
BTW, a howler of a misnomer - I bet most Madames are sharp
businesswomen who run a very _orderly_ house, with everything in its
place, and every penny accounted for...).
> ...conduct unbecoming the corporate mascot, perhaps?
ROFL. Figure out what you want to say, then come back and we can
discuss it further.
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>One assumes a duty by applying for a restaurant license and WAIVES a
>whole bunch of rights in the process, including the right of health
>inspectors to search and cite without warrant.
Not so. A restaurant owner has the right to exclude the Health
Department Inspectors from his restaurant. (Should he do so, the
Health Department will likely just Fail the restaurant, forcing it to
close, so exercising that right is probably not a good idea.)
>I would gather from what we see here that there may not be a single
>jurisdiction that has passed ordinances or legislation on the matter
>of restricting service to those in arbitrarily selected motorized
>vehicles.
Which, under US principles, means that a business is permitted to make
arbitrary rules on that topic, subject only to the usual
anti-discrimination laws.
>If such an ordinance is passed,
Which I think is vanishingly unlikely. Where is the pressure to pass
it?
Will such an ordinance also come with a guarantee that the business
which is forced to open its drive-through window to pedestrians will
be indemnified and held harmless for any resulting harm to pedestrians
who are injured as a result? Who will provide that indemnification?
> I suggest the permission come with a heavy tax and serious
>restrictions, say, after 9pm only, and only for 60 minutes on any
>given day.
Where is the constituency for such a law? Who gains when it causes a
restaurant (or other business) to close some services rather than pay
a "heavy tax"?
> In such case a judicial administrator
>might give summary judgment to a defendant who might well appeal the
>legality of the ordinance, a "legal" issue logically presented to an
>appellate court rather than to a jury.
Huh? Who would be the plaintiff?
>Otherwise, the issue needs to be presented to a jury of twelve who
>must be assumed to be reasonable, or the person on the bench needs to
>go bye bye.
What "issue"?
>My guess is, the growing practice is downright illegal in most
>jurisdictions,
According to *what law*? Something isn't illegal because somebody
doesn't like it, but because there's a specific law against it.
> but the route to enforcement is not clear,
There would have to be a law before you can have enforcement.
> Can you charge a restaurant with disorderly conduct?
No.
> ...conduct unbecoming the corporate mascot, perhaps?
Yeah, right. Where is that made illegal?
Seth
Deadrat
> In article
> <ca7f5725-9188-4e92...@p35g2000yqh.googlegroups.com>,
> Silence DoGood <Silence...@angelic.com> wrote:
>
>>One assumes a duty by applying for a restaurant license and WAIVES a
>>whole bunch of rights in the process, including the right of health
>>inspectors to search and cite without warrant.
>
> Not so. A restaurant owner has the right to exclude the Health
> Department Inspectors from his restaurant.
Not in Illinois:
<quote>
(410 ILCS 650/11) (from Ch. 56 1/2, par. 77)
Sec. 11. Except as hereinafter provided, the Department of Public
Health shall enforce this Act, and for that purpose it may at all times
enter every such building, room, basement, inclosure or premises occupied
or used or suspected of being occupied or used for the production,
preparation or manufacture for sale, or the storage, sale, distribution or
transportation of such food, to inspect the premises and all utensils,
fixtures, furniture and machinery used as aforesaid
</quote>
> (Should he do so, the
> Health Department will likely just Fail the restaurant, forcing it to
> close, so exercising that right is probably not a good idea.)
Should he do so in Illinois, he's guilty of a misdemeanor.
<snip/>
> Seth
>
Daniel R.Reitman
>In article <ca7f5725-9188-4e92...@p35g2000yqh.googlegroups.com>,
>Silence DoGood <Silence...@angelic.com> wrote:
>
>>One assumes a duty by applying for a restaurant license and WAIVES a
>>whole bunch of rights in the process, including the right of health
>>inspectors to search and cite without warrant.
>
>Not so. A restaurant owner has the right to exclude the Health
>Department Inspectors from his restaurant. . . .
>. . . .
Not in Oregon. Or. Rev. Stat. @ 624.060(1).
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Seth
Deadrat <a...@b.com> wrote:
>se...@panix.com (Seth) wrote in news:hcs75f$177$1...@reader1.panix.com:
>> In article
>> <ca7f5725-9188-4e92...@p35g2000yqh.googlegroups.com>,
>> Silence DoGood <Silence...@angelic.com> wrote:
>>
>>>One assumes a duty by applying for a restaurant license and WAIVES a
>>>whole bunch of rights in the process, including the right of health
>>>inspectors to search and cite without warrant.
>>
>> Not so. A restaurant owner has the right to exclude the Health
>> Department Inspectors from his restaurant.
>
>Not in Illinois:
>
><quote>
>(410 ILCS 650/11) (from Ch. 56 1/2, par. 77)
> Sec. 11. Except as hereinafter provided, the Department of Public
>Health shall enforce this Act, and for that purpose it may at all times
>enter every such building, room, basement, inclosure or premises occupied
>or used or suspected of being occupied or used for the production,
>preparation or manufacture for sale, or the storage, sale, distribution or
>transportation of such food, to inspect the premises and all utensils,
>fixtures, furniture and machinery used as aforesaid
></quote>
>Should he do so in Illinois, he's guilty of a misdemeanor.
How is that reconciled with the Fourth Amendment? Is there something
in the application for a restaurant license that specifically and
explicitly waives rights?
Seth
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
>On Wed, 4 Nov 2009 15:38:24 +0000 (UTC), se...@panix.com (Seth) wrote:
>>In article <ca7f5725-9188-4e92...@p35g2000yqh.googlegroups.com>,
>>Silence DoGood <Silence...@angelic.com> wrote:
>>
>>>One assumes a duty by applying for a restaurant license and WAIVES a
>>>whole bunch of rights in the process, including the right of health
>>>inspectors to search and cite without warrant.
>>
>>Not so. A restaurant owner has the right to exclude the Health
>>Department Inspectors from his restaurant. . . .
>
>>. . . .
>
>Not in Oregon. Or. Rev. Stat. @ 624.060(1).
That says that inspections shall occur, and the operator shall permit
access. The question is what happens when that section is violated.
(5) says that if any section (including this) is violated, a second
inspection shall occur.
624.073 provides for the revocation or suspension of licenses, and
closure of facilities.
So it appears that the owner _can_ exclude the Health Department, and
will have his license suspended or revoked (and the restaurant closed)
as a result.
Seth
Robert Bonomi
Silence DoGood <Silence...@angelic.com> wrote:
>
>
>>What the jury is being asked to find, as a factual matter, based on
>>the preponderance of the evidence, is whether the defendant _met_ his
>>duty to act as a reasonable person should act under all the
>>circumstances shown by the evidence, _not_ whether he _has_ such a
>>duty.
>
>
>
>One assumes a duty by applying for a restaurant license and WAIVES a
>whole bunch of rights in the process, including the right of health
>inspectors to search and cite without warrant.
>
>I would gather from what we see here that there may not be a single
>jurisdiction that has passed ordinances or legislation on the matter
>of restricting service to those in arbitrarily selected motorized
>vehicles.
"We reserve the right to refuse service to anyone" still applies -- UNLESS
it involves _illegal_discrimmination_ against a 'protected' class.
"Pedestrians", or 'people on foot' are _not_ such a class.
Note: discrimmination against a person who is a member of a 'protected'
class is _not_ *illegal*, if it is done for reasons _other_ than the
membership in that protected class.
>My guess is, the growing practice is downright illegal in most
>jurisdictions,
"Business" advice (not 'legal' :) -- don't put up any money in support of
anything reying on your 'guess'.
Silence DoGood
> That license imposes a duty to obey the statutes and regulations
> pertaining to the licensed restaurant business, _not_ a general duty
> in tort to all members of the public.
I think we understand ourselves to be talking about a restaurant chain
with a big sign, posted hours, and the like.
Such used to be called a public offering, and if you make a public
offering, society expects you to honor it, and a jury can decide if
you did.
I say "used to" because finding someone to administer the law as
opposed to serving special interests, is becoming increasingly
unlikely.
To the best of my knowledge, no elected representatives have sought to
repeal what I assume is a common law concept, but it comes about
through radical legislation from the bench.
Anyone can claim the right to refuse service to anyone for any reason,
or any other right they want to claim, or that the right of
contributing to a judicial campaign is protected free speech.
Can you cite a statute that exempts restaurants from responsibility to
the public? Would that same exemption apply to a food concession in an
airport?
Aren't there laws requiring when physicians must give care? If the
public has the right to control their licenses, where do you find the
exemption for those who provide food?
Cy Pres
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
What's unreasonable about inspecting restaurants? Restaurants are not
private houses. The public is already able to enter them. The
purpose of the Fourth Amendment is to protect privacy and dignity from
government intrusion. Inspecting restaurants has no impact on that
concern.
>Is there something
>in the application for a restaurant license that specifically and
>explicitly waives rights?
Yes. You are applying for the right to sell food to the public. For
that matter, you are already opening up the premises to the general
public, which may enter at will. If your procedures are bad, people
could die. It is well within the police powers of a state to protect
the health of the public.
Stuart A. Bronstein
> Deadrat <a...@b.com> wrote:
>>> Not so. A restaurant owner has the right to exclude the
>>> Health Department Inspectors from his restaurant.
>>
>>Not in Illinois:
>>
>><quote>
>>(410 ILCS 650/11) (from Ch. 56 1/2, par. 77)
>> Sec. 11. Except as hereinafter provided, the Department of
>> Public Health shall enforce this Act, and for that purpose it
>> may at all times enter every such building, room, basement,
>> inclosure or premises occupied or used or suspected of being
>> occupied or used for the production, preparation or manufacture
>> for sale, or the storage, sale, distribution or transportation
>> of such food, to inspect the premises and all utensils,
>> fixtures, furniture and machinery used as aforesaid </quote>
>
>>Should he do so in Illinois, he's guilty of a misdemeanor.
>
> How is that reconciled with the Fourth Amendment? Is there
> something in the application for a restaurant license that
> specifically and explicitly waives rights?
By opening a restaurant, in exchange for being licensed you agree
to inspections.
Daniel R.Reitman
Which clearly indicates that the restaurateur does not "have the
right," as you stated, to exclude the inspector.
Deadrat
> In article <gtidna5CjLP81G7X...@giganews.com>,
> Deadrat <a...@b.com> wrote:
>>se...@panix.com (Seth) wrote in news:hcs75f$177$1...@reader1.panix.com:
>>> In article
>>> <ca7f5725-9188-4e92...@p35g2000yqh.googlegroups.com>,
>>> Silence DoGood <Silence...@angelic.com> wrote:
>>>
>>>>One assumes a duty by applying for a restaurant license and WAIVES a
>>>>whole bunch of rights in the process, including the right of health
>>>>inspectors to search and cite without warrant.
>>>
>>> Not so. A restaurant owner has the right to exclude the Health
>>> Department Inspectors from his restaurant.
>>
>>Not in Illinois:
<snip/>
>
>>Should he do so in Illinois, he's guilty of a misdemeanor.
>
> How is that reconciled with the Fourth Amendment?
The 4th Amendment prohibits "unreasonable" searches.
> Is there something in the application for a restaurant license that
> specifically and explicitly waives rights?
I checked an application for a local food service license, and didn't see
any specific waiver. But you don't need to agree to obey the law before it
applies to you.
> Seth
>
Mike Jacobs
> On Nov 1, 1:37�pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > That license imposes a duty to obey the statutes and regulations
> > pertaining to the licensed restaurant business, _not_ a general duty
> > in tort to all members of the public.
>
> I think we understand ourselves to be talking about a restaurant chain
> with a big sign, posted hours, and the like.
Okay. Whether it is a "chain" franchise, or a local mom-and-pop
diner, makes no difference to the analysis, but okay, I'll take your
assumption as a starting point.
> Such used to be called a public offering,
No it didn't. An advertisement, including the kind consisting of a
sign (neon-lit or otherwise, bright-colored or discreetly earth-toned,
big or small) posted on the outside of an establishment itself, is
simply a way of ANNOUNCING and drawing public attention to the
presence of that merchant, and perhaps also to the variety and quality
of the goods he has for sale, and/or their price, often but not
necessarily as a way of _soliciting_ business from prospective
customers.
Only in very limited circumstances does such an apparent solicitation
flip over and constitute a formal _offer_ to sell a particular item to
any and all comers, as to which any member of the public can form a
binding contract by laying his money down (or furnishing the other
performance requested by the ad) and demanding to be furnished the
advertised product. Such circumstances have usually been found to
arise only in the context of a pitch which says something like, "We
will give a free meal to anyone who can ride a unicycle, rub his
stomach with one hand, and pat his head with the other hand, for 1
full minute" since, once the claimant DOES all those things, he has
CHANGED HIS POSITION TO HIS DETRIMENT (by doing those things, instead
of doing something else) in RELIANCE on the promise the merchant made
to ANY AND ALL persons who were able to fulfill the condition.
> and if you make a public
> offering, society expects you to honor it, and a jury can decide if
> you did.
Formation of a contract requires (a) an offer, (b) acceptance, and (c)
consideration. In the typical merchant case, the customer placing
his _order_ (and/or, in a self-service establishment such as a
supermarket, bringing the goods he selected for himself off the
shelves and up to the check-out counter) is what constitutes the OFFER
to BUY those particular goods; the mechant then will (normally, but he
is not _legally_required_ to) agree to SELL those particular goods by
ACCEPTING the order; and the mutual promises are then consummated
(performed) and consideration is exchanged by the buyer placing his
money on the counter in the agreed amount, and the merchant placing
the goods on the counter (or, in a self-sevice joint, allowing the
customer to leave the store with the goods the customer has selected
himself), whereupon the merchant takes the money and the customer
takes the goods.
> I say "used to" because finding someone to administer the law as
> opposed to serving special interests, is becoming increasingly
> unlikely.
I would be very curious to hear where and when you "used to" be able
to _force_ a merchant, against his will, to sell you some particular
goods, or to sue him if he refuses - PUTTING ASIDE cases of a merchant
who makes an offer to form a unilateral contract that a prospective
customer can accept by performance (as in my "free meals for
unicyclists" example) or cases of invidious discrimination in places
of public accommodation on the basis of membership in a protected
class, as we also have been leaving out of this discussion up until
now and continue to do (I don't want to hear about civil rights sit-
ins at lunch counters in South Carolina frex). Fully fleshed out
anecdotes from personal experience would be accepted for purposes of
this discussion, as would be your citations to either a reported legal
case, or a news article accessible by Internet (provision of a handy
URL link would be appreciated).
> To the best of my knowledge, no elected representatives have sought to
> repeal what I assume is a common law concept,
Your assumption that this "duty" of a merchant exists as a common law
concept is incorrect.
> but it comes about
> through radical legislation from the bench.
What you call "radical legislation from the bench" is what the rest of
us call "the process by which the common law is constantly being
created and updated." For someone who claims to hold the common law
in high esteem (your position as stated 2 sentences above), your
evident distaste for the actual process by which common law is created
is puzzling.
> Anyone can claim the right to refuse service to anyone for any reason,
Yes. That's what I and other posters here on this thread have been
saying all along (putting aside forbidden discrimination, etc.). So,
now you _agree_ with us?
> or any other right they want to claim,
I wouldn't go that far. Or, are you saying this sarcastically, as
in, "Go ahead and _claim_ a right all you want, but that doesn't make
it _really_ a right?"
A sentence ago, I took your use of the verb "claim" in the legal, not
popular sense. Perhaps I was mistaken.
A "claim" in the legal sense has no pejorative implication; making a
claim is the means by which one commences a legal case in which one
ASSERTS a legal right that one believes one IN FACT possesses.
Whether or not the claim is valid is what a trial will be about, of
course; but the verb "claim" in no way equates to "_falsely_ claim"
which is unfortunately the primary sense in which the word "claim" is
used today in the vernacular, partly as a result of decades of
insidious "tort reform" propaganda.
> or that the right of
> contributing to a judicial campaign is protected free speech.
One can _claim_ that, yes, but if one is a mega-coal-mine-owning
litigant in West Virginia who has effectively "bought" the State
Supreme Court judge who rules in your favor in a multizillion dollar
case in which you are trying to crush your last remaining local coal-
mining competitor and achieve a local monopoly, one might argue that
other public policy factors trump that claim of right - or, at least,
that the bought-and-paid-for judge ought to recuse himself from
deciding the coal-mine-owning campaign-donor's case. Is Caperton v.
Massey Coal Co. the case you were alluding to, here? See, frex,
http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf
> Can you cite a statute that exempts restaurants from responsibility to
> the public?
Of course not. Which is why the generally applicable tort duty - to
avoid negligently causing injury to others if reasonable steps could
easily prevent a foreseeable risk of harm - leads many such
restaurateurs to BAN WALK-UP CUSTOMERS FROM THEIR DRIVE-THRU WINDOWS,
so the walkers don't get run over by the drivers. They do this FOR
THE PEDESTRIANS' SAFETY, not because they hate pedestrian customers.
If you haven't "gotten" that yet, I am left to conclude that you are
being obstreperous on purpose, since I cannot honestly believe anyone
is so stupid that they really can _not_ "get it." Stirring up
controversy can be fun in itself, not to mention, doing so can be used
as a lead-in to your favorite hobby horse of judicial misconduct,
after the pot has been stirred sufficiently to arouse interest.
> Would that same exemption apply to a food concession in an
> airport?
I doubt that many concessionaires on Concourse B at your local airport
have a drive-up window, either for those in cars or for those in
airplanes. Since we were talking about the legality of a merchant
offering a drive-up-only window, perhaps you could explain what other
sort of "exemption ... from responsibility to the public" you are
talking about with reference to airport concessions. Noting that this
would begin an entirely separate topic, maybe you will want to do so
in a new thread.
> Aren't there laws requiring when physicians must give care?
Another new topic.
Yes, there are occasions when a physician has a duty to render care,
once he has established a physician-patient relationship with a
particular patient - but NO physicians (other than those who hold
themselves out as trauma emergency providers, e.g. at a hospital E/R)
have a legally enforceable DUTY to BEGIN to give care even to a person
in dire need of care. One cannot sue an M.D. sitting in a theatre
audience who fails to stand and come forward to help when someone
collapses on stage and the M.C. cries out, "Is there a doctor in the
house?"
> If the public has the right to control their licenses,
By "their," you are talking about doctors? As noted above, doctors
in general don't have a legally enforceable DUTY to supply their
professional services to all comers, any more than a restaurant does.
> where do you find the
> exemption for those who provide food?
We have not been talking about ANY exemption, for anybody. Before one
gets to the issue of "exemption" there has to be some basis to claim
there is a generally applicable DUTY in the first place. If this
whole discussion goes back to your mistaken assumption that an
advertisement constitutes an OFFER which any member of the public may
ACCEPT and thereby form a binding contract, imposing a legally
enforceable duty to perform upon the one who holds himself out as a
provider, it is that flawed assumption which is at the root of your
misunderstanding. Are we on the same page now?
Robert Bonomi
Silence DoGood <Silence...@angelic.com> wrote:
>
>I say "used to" because finding someone to administer the law as
>opposed to serving special interests, is becoming increasingly
>unlikely.
Cite please. Or is that merely your unsubstantiated opinion?
>
>To the best of my knowledge, no elected representatives have sought to
>repeal what I assume is a common law concept,
_What_ concept do you refer to?
> but it comes about
>through radical legislation from the bench.
>
>Anyone can claim the right to refuse service to anyone for any reason,
>or any other right they want to claim, or that the right of
>contributing to a judicial campaign is protected free speech.
>
>Can you cite a statute that exempts restaurants from responsibility to
>the public?
Can you cite a statute that _requires_ it?
Absent such a statutory requirement, on what basis do you assert that
_any_ such ill-defined "responsibility" exists? Postulating that you
do assert that such a responsibility exists, precisely what is the 'scope'
and/or 'limits' of that responsibility? i.e. what actions does it require,
and what does it -not- require?
> Would that same exemption apply to a food concession in an
>airport?
>
>Aren't there laws requiring when physicians must give care?
There are laws that dictate that medical institutions _that_receive_public_
_monies_ must provide some kinds of care (within limits), in specific
circumstances.
If you believe that there are laws requiring physicians to give care, it is
_YOUR_ duty/responsibility to _locate_ and provide a citation to such a law,
since it is *impossible* (both in 'practical' and 'theoretical' terms) to
prove that no such law exists.
> If the
>public has the right to control their licenses, where do you find the
>exemption for those who provide food?
If the premise is flawed, there is no meaningful answer to the question.
You really should make an attempt to verify your assumptions _before_
using them as the basis for argument that is predicated on their accuracy.
Regardless, your query is improperly posed. The 'public', as you put it,
has no 'right' to do anything, UNLESS there is a 'compelling reason in the
public interest' to do that thing. It should be no surprise to anyone that
there may be a 'compelling public interest" in a higher degree of regulation
of medical professionals than there is is present regarding the regulation of
food-service workers (or establishments). Or that the _type_ of regulation
of those entities, justified "in the public interest", is different.
Daniel R.Reitman
>On Fri, 6 Nov 2009 16:16:13 +0000 (UTC), se...@panix.com (Seth) wrote:
>>How is that reconciled with the Fourth Amendment?
>
>"The right of the people to be secure in their persons, houses,
>papers, and effects, against unreasonable searches and seizures, shall
>not be violated, and no Warrants shall issue, but upon probable cause,
>supported by Oath or affirmation, and particularly describing the
>place to be searched, and the persons or things to be seized."
>
>What's unreasonable about inspecting restaurants? Restaurants are not
>private houses. The public is already able to enter them. The
>purpose of the Fourth Amendment is to protect privacy and dignity from
>government intrusion. Inspecting restaurants has no impact on that
>concern.
>> . . . .
>. . . .
The concept of the Fourth Amendment applies to places of business, so
that argumet doesn't work.
The real reason is that the Fourth Amendment applies only to criminal
searches. Health inspections are something else and can be made a
condition for a license.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INRENDED.
Steve Bartman
(Robert Bonomi) wrote:
>"We reserve the right to refuse service to anyone" still applies -- UNLESS
>it involves _illegal_discrimmination_ against a 'protected' class.
>"Pedestrians", or 'people on foot' are _not_ such a class.
How does this statement square with "places of public accommodation"
laws? Are they still in force in most jurisdictions? A restaurant,
diner, or fast-food place would seem to fit the classic definition of
a POPA. Those laws pre-date the major civil rights laws, and would
seem to be additive to them.
Steve
Robert Bonomi
Steve Bartman <sbar...@visi.com> wrote:
>On Sat, 07 Nov 2009 12:23:28 -0600, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>
>>"We reserve the right to refuse service to anyone" still applies -- UNLESS
>>it involves _illegal_discrimmination_ against a 'protected' class.
>>"Pedestrians", or 'people on foot' are _not_ such a class.
>
>How does this statement square with "places of public accommodation"
>laws?
Got a cite to one?
> Are they still in force in most jurisdictions?
Good question! Repeating, got a cite?
Silence DoGood
> �Postulating that you
> do assert that such a responsibility exists, precisely what is the 'scope'
> and/or 'limits' of that responsibility? �i.e. what actions does it require,
> and what does it -not- require?
That would be decided by a jury or a licensing agency, not by a
judicial administrator and not by us.
> If you believe that there are laws requiring physicians to give care, it is
> _YOUR_ duty/responsibility to _locate_ and provide a citation to such a law,
> since it is *impossible* (both in 'practical' and 'theoretical' terms) to
> prove that no such law exists.
I'm not talking about putting people in jail for crimes, I'm talking
of loss of license.
Silence DoGood
> We have not been talking about ANY exemption, for anybody. �Before one
> gets to the issue of "exemption" there has to be some basis to claim
> there is a generally applicable DUTY in the first place. �If this
> whole discussion goes back to your mistaken assumption that an
> advertisement constitutes an OFFER which any member of the public may
> ACCEPT and thereby form a binding contract, imposing a legally
> enforceable duty to perform upon the one who holds himself out as a
> provider, it is that flawed assumption which is at the root of your
> misunderstanding. � Are we on the same page now?
You appear to be giving an opinion on a fact issue, that is one to be
decided by a jury.
What about another layer? Aren't there laws against false advertising?
Why do offers for credit have that ubiquitous asterisk "* subject to
approval"? Isn't it part of the restaurant license to obey the law?
You seem to be saying "Where is the harm?" But if you scroll back, I
envisioned cases where the subject would be harmed.
By the way, I, personally, would not consider it adequate to say
"drive-through window only opened after 9pm" because we are talking
about someone approaching that window, and not one complaining against
it. What we are essentially talking about is refusal of service to
anyone who does not arrive in an arbitrarily configured, and
presumbaly motorized, vehicle.
Suppose an airport hot-dog concession declares that only people with
carry on luggage get to eat. --I don't think so.
There are precedents for others you mention. In Texas there was a last-
chance-gas case, where as best I could understand it, the judge ruled
the defendant had a duty to sell gas, but was excused in declining
service because gas was available at the opposite corner of the
intersection. I believe the price was five cents per gallon higher and
the plaintiff was awarded 50 cents.
I always heard that anyone had the right to sue anyone for any reason.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 6 Nov 2009 16:16:13 +0000 (UTC), se...@panix.com (Seth) wrote:
>>In article <gtidna5CjLP81G7X...@giganews.com>,
>>Deadrat <a...@b.com> wrote:
>
>>>(410 ILCS 650/11) (from Ch. 56 1/2, par. 77)
>>> Sec. 11. Except as hereinafter provided, the Department of Public
>>>Health shall enforce this Act, and for that purpose it may at all times
>>>enter every such building, room, basement, inclosure or premises occupied
>>>or used or suspected of being occupied or used for the production,
>>>preparation or manufacture for sale, or the storage, sale, distribution or
>>>transportation of such food, to inspect the premises and all utensils,
>>>fixtures, furniture and machinery used as aforesaid
>>></quote>
>
>>>Should he do so in Illinois, he's guilty of a misdemeanor.
>
>>How is that reconciled with the Fourth Amendment?
>
>"The right of the people to be secure in their persons, houses,
>papers, and effects, against unreasonable searches and seizures, shall
>not be violated, and no Warrants shall issue, but upon probable cause,
>supported by Oath or affirmation, and particularly describing the
>place to be searched, and the persons or things to be seized."
>
>What's unreasonable about inspecting restaurants? Restaurants are not
>private houses.
The Fourth Amendment applies to businesses as well.
> The public is already able to enter them.
The public may enter *part of* the restaurant.
> The purpose of the Fourth Amendment is to protect privacy and
>dignity from government intrusion. Inspecting restaurants has no
>impact on that concern.
What happens when a Health Inspector demands access to, say, an
employee's locker?
>>Is there something in the application for a restaurant license that
>>specifically and explicitly waives rights?
>
>Yes.
Can you find that explicit statement in some application?
> You are applying for the right to sell food to the public. For
>that matter, you are already opening up the premises to the general
>public, which may enter at will.
Only into the parts of it which I invite the public into. They are
very much not permitted to "enter at will" into the kitchen, storage
area, liquor lockers, etc.
> If your procedures are bad, people could die. It is well within
>the police powers of a state to protect the health of the public.
As I've said, the Health Department has every right to *close* the
restaurant if inspection is not permitted. Surely that protects the
public sufficiently from anything that restaurant might serve.
Seth
Mike Jacobs
> On Sat, 07 Nov 2009 12:23:28 -0600, bon...@host122.r-bonomi.com
>
> (Robert Bonomi) wrote:
> >"We reserve the right to refuse service to anyone" still applies -- UNLESS
> >it involves _illegal_discrimmination_ against a 'protected' class.
I agree with Mr. Bonomi, at least in the kind of contract we have been
talking about on this thread, where the prospective buyer's order
constitutes the "offer" and the seller's agreement to provide buyer
with the items on that order constitutes the seller's "acceptance",
with the exchange of goods for money then constituting the necessary
"consideration." A merchant can't refuse, with impunity, to serve a
person who holds a properly obtained coupon, or who came to the store
because of a "We'll give a $20 3-course meal for $1 to the first 100
people in line" ad if that person is #1 through #100 in line, or such,
in circumstances where the coupon or ad itself legally constitutes an
"offer." (Such a merchant may be legally obligated to give some
customers a rain check, if he runs out before the time and/or quantity
stated in the ad expires). For simplicity's sake, though, here we're
only talking about the standard, place-your-order type of service
routinely offered at most restaurants, and the isuse was whether it is
OK for such merchants to refuse service to walk-up customers at their
drive-up windows.
> >"Pedestrians", or 'people on foot' are _not_ such a class.
I agree with Mr. Bonomi here again. At least, I'm not aware of any
jurisdiction that has passed a statute making them one. If Mr. DoGood
wants to argue that discrimination against pedestrians _SHOULD_ be
illegal, he's certainly free to express that opinion. But if he
wants to argue that such discrimination already _IS_ illegal,
anywhere, he has the burden to come forward with proof.
> How does this statement square with "places of public accommodation"
> laws?
What laws are those, Mr. Bartman? Are you referring to Title II of
the Civil Rights Act of 1964, as amended? See, frex, the 8th, 9th
and 10th paragraphs of the FAQ at
http://www.justice.gov/crt/housing/faq.php#t2
I'm not sure why you feel any need to "square" the "public
accommodation laws" with the concept of a "protected class" and the
prohibitions on discrimination against members of such a class, Mr.
Bartman. You seem to think these are 2 different statutory schemes;
in fact, the "public accommodation laws" are just one part of the
overall anti-discrimination statutory scheme which makes use of the
concept of "protected class." If that's not what you meant, perhaps
you could explain further.
> Are they still in force in most jurisdictions?
Yes, Title II of the 1964 Act is still in force. Many local
jurisdictions (states, counties, cities) also have their _own_ anti-
discrimination laws which may extend the right of access to places of
public accommodation to members of _additional_ protected classes not
covered by the Federal law (frex, many jurisdictions, such as DC, ban
discrimination on the basis of sexual orientation; this is not a
"protected class" covered by Title II).
> A restaurant,
> diner, or fast-food place would seem to fit the classic definition of
> a POPA.
Sure.
> Those laws pre-date the major civil rights laws,
Here, I think you may be confused; the 1964 Act (as amended to date)
_is_ the "major civil rights law" if, by "civil rights" we mean the
prohibition on discrimination against persons on the basis of their
membership in a protected class, whether that discrimination occurs in
the context of public accommodations, housing, employment, education,
etc. The previous efforts of the so called "Civil Rights
Movement" (before 1964) were mostly aimed at requiring _governments_
in Jim Crow jurisdictions to live up to the requirements of the
Constitution by providing the same _constitutionally_ guaranteed
rights (the right to due process, the right to vote, etc.) to all
citizens regardless of race, creed, etc. The landmark nature of the
1964 Act was that, by relying on the Commerce Clause of the US
Constitution for authority, Congress for the first time imposed
_affirmative_ duties on _private_ citizens and businesses, requiring
_them_ not to discriminate in providing the specified services on the
basis of an affected person's race, creed, etc.
> and would seem to be additive to them.
The laws against discrimination in public accommodation are part and
parcel of the original Civil Rights Act of 1964. If by "additive"
you mean that Title II provides prospective customers with certain
statutory rights with regard to access to places of public
accommodation, while (frex) Title VI prohibits discrimination in
programs receiving Federal funding, Title VII deals with
discrimination in employment, Title VIII requires non-discriminatory
access to housing opportunities, and Title IX (a 1972 amendment to
Title VI) deals with gender discrimination in education, then yes, I
would agree that the remedies of Title II for discrimination in public
accommodation are additive to the Act's parallel prohibitions on
discrimination in those other areas of activity.
Stuart A. Bronstein
>> Is there something in the application for a restaurant license
>> that specifically and explicitly waives rights?
>
> I checked an application for a local food service license, and
> didn't see any specific waiver. But you don't need to agree to
> obey the law before it applies to you.
A waiver doesn't have to be on a license application. If the law
requires licensees to allow an inspection, and someone applies for a
license under that state of the law, he implicitly waives any right
he may have to avoid inspections called for by the law.
Seth
That's a philosophical issue, I guess. I would say he does have that
right, and there are consequences of exercising it.
If he didn't have the right, when the inspector showed up and he
attempted to exclude him, the inspector could get the police and force
his way in. Rather, when he chooses to exclude the inspector, the
inspector stays excluded, and fails the restaurant (forcing it to
close).
Seth
David Chesler
> > Such used to be called a public offering,
>
> presence of that merchant, and perhaps also to the variety and quality
> of the goods he has for sale, and/or their price, often but not
> necessarily as a way of _soliciting_ business from prospective
> customers.
>
> Only in very limited circumstances does such an apparent solicitation
> flip over and constitute a formal _offer_ to sell a particular item to
> any and all comers, as to which any member of the public can form a
> binding contract by laying his money down (or furnishing the other
> performance requested by the ad) and demanding to be furnished the
> advertised product. �Such circumstances have usually been found to
> arise only in the context of a pitch which says something like, "We
> will give a free meal to anyone who can ride a unicycle, rub his
> stomach with one hand, and pat his head with the other hand, for 1
> full minute" since, once the claimant DOES all those things, he has
> CHANGED HIS POSITION TO HIS DETRIMENT (by doing those things, instead
> of doing something else) in RELIANCE on the promise the merchant made
> to ANY AND ALL persons who were able to fulfill the condition.
How is it not to the would-be customer's detriment to be at the 24-
hour McDonald's but be refused service because he arrived by unicycle
rather than by car instead of cooking dinner, or to be at the
supermarket with a carriage full of groceries that took time to select
instead of being at the checkout of some other supermarket that didn't
induce him to come in with the sign announcing certain items at
certain prices?
--
- David Chesler <che...@post.harvard.edu>
New York's home, but it ain't mine no more
Seth
The ones I found (by a quick googling) tend to prohibit discrimination
against various named classes (sometimes many more than the usual
ones, but still specifically listed groups). I didn't see
"pedestrians" as such a group in any of them.
That's especially true since "pedestrian" is a status, not a category
(and one that changes easily and quickly, unlike, say, a temporary
disability caused by a broken leg).
Restaurants often ban people who aren't wearing shirts. There aren't
(in most states, at least) any legal requirements to do so; but
"shirtless" isn't a protected class, so such bans are legal.
Seth
Steve Bartman
<mjaco...@gmail.com> wrote:
>Only in very limited circumstances does such an apparent solicitation
>flip over and constitute a formal _offer_ to sell a particular item to
>any and all comers, as to which any member of the public can form a
>binding contract by laying his money down (or furnishing the other
>performance requested by the ad) and demanding to be furnished the
>advertised product. Such circumstances have usually been found to
>arise only in the context of a pitch which says something like, "We
>will give a free meal to anyone who can ride a unicycle, rub his
>stomach with one hand, and pat his head with the other hand, for 1
>full minute" since, once the claimant DOES all those things, he has
>CHANGED HIS POSITION TO HIS DETRIMENT (by doing those things, instead
>of doing something else) in RELIANCE on the promise the merchant made
>to ANY AND ALL persons who were able to fulfill the condition.
I hesitate to enter this thread, as I don't agree with Mr. DoGood's
position, or even care that much about it given his changing fact
sets. But this area of intersection between private contract rights
and constitutional rights of free association, and the historical and
statutory concept of places of public accommodation is interesting to
me.
The first two concepts seem well established and clear. No person can
be compelled to enter into a bargain against their will. Free offer
and acceptance are cornerstones of basic contract law. And the right
of free association is likewise well understood through constitutional
amendment and case law stretching back to the first Supreme Court
decisions.
But it has also been my understanding that the concept of places of
public accommodation (POPA) goes back at least to the late Middle Ages
in England when King's Inns were designated. Those inns were forbidden
by royal decree from turning away anyone with funds, this being done
to reduce the risk of assault or robbery by highwaymen. I had thought
this concept worked into the common law and was imported to America,
and thus into the foundation of our legal system. Many/all states
through statute outlaw protected class discrimination in POPAs, as do
many federal laws and court cases involving interstate commerce. State
statutes generally define POPAs by class of establishment. I have not
done an exhaustive survey, but the Big Three--eating establishments,
hotels/motels, and common carriers--would seem to be universal. I have
seen some state statutes (Texas?) that go into great detail (dentists
offices, ice cream parlors), while others do not.
So, is there a special case under the POPA common law concept whereby,
if there is no protected class discrimination, the very act of
operating a POPA implies a prior statement that all valid offers will
be accepted? (Assuming the offer is bona fide and the offeree is not
breaching the peace, intoxicated, or otherwise committing a crime at
the time of the offer.) I think that many localities skirt this issue
by making it a business license condition that the POPA not
discriminate re protected class status, but can a license also require
the POPA to enter contracts with all non-protected-class offerees who
are acting legally?
If so, what of "No shirt, no shoes, no service" conditions? What of
"We reserve the right to refuse to service to anyone for any reason"
signs? Could a restaurant refuse to serve all redheads, or all
left-handed customers, under a free association, or a freedom to
contract, theory? If there is no statute speaking to this either way,
is there a common law argument for those redheads and southpaws?
Steve
Stuart A. Bronstein
> Such used to be called a public offering, and if you make a public
> offering, society expects you to honor it, and a jury can decide if
> you did.
No it didn't. The term "public offering" has a specific legal
meaning having nothing to do with this discussion. It means an
offering to sell an interest in a business to a purchaser who will
have no direct ability to, based on his ownership, control any of the
practices of the business.
Silence DoGood
> se...@panix.com (Seth) wrote innews:hd1i4d$h0$2...@reader1.panix.com:
>
> > In article <gtidna5CjLP81G7XnZ2dnUVZ_sGdn...@giganews.com>,
> > Deadrat �<a...@b.com> wrote:
> >>se...@panix.com (Seth) wrote innews:hcs75f$177$1...@reader1.panix.com:
> > How is that reconciled with the Fourth Amendment?
>
> The 4th Amendment prohibits "unreasonable" searches.
Who says you can't waive your 4th ammendment rights such as by
applying for a restaurant license?
Mike Jacobs
> On Sun, 8 Nov 2009 09:37:07 -0800 (PST), Mike Jacobs
> <mjacobs...@gmail.com> wrote:
> >Only in very limited circumstances does such an apparent solicitation
> >flip over and constitute a formal _offer_ to sell a particular item to
> >any and all comers, as to which any member of the public can form a
> >binding contract by laying his money down (or furnishing the other
> >performance requested by the ad) and demanding to be furnished the
> >advertised product.
<my discussion of some rare examples of ads that constitute offers to
contract, which the general public can accept by performance, snipped>
> I hesitate to enter this thread, as I don't agree with Mr. DoGood's
> position, or even care that much about it given his changing fact
> sets.
I think Mr. Bartman and I can have a discussion that is completely
separate from Mr. DoGood's opinions. In fact, I will change the
topic of this new thread we seem to be starting, so we (and other
interested persons) can do just that.
> But this area of intersection between private contract rights
> and constitutional rights of free association, and the historical and
> statutory concept of places of public accommodation is interesting to
> me.
Okay, so _that's_ what you mean by the ancient "public accommodation"
laws - the law of innkeepers and common carriers.
We'll get to that in a minute. But I note, in passing, that the
ancient English duty of innkeepers and common carriers certainly did
not get in the way of Jim Crow laws in the USA which set up separate
"whites" and "coloreds" sections on every railcar, bus, hotel and
restaurant in affected areas until the Civil Rights Act of 1964 was
passed. So, we really haven't been talking about innkeeper law, up
til now; we've been talking about "protected class" anti-
discrimination laws and whether pedestrians are considered a
"protected class" anywhere for that purpose. I concluded they are
not.
> The first two concepts seem well established and clear. No person can
> be compelled to enter into a bargain against their will.
Okay. That is the common law. But, under the 1964 Act as amended,
those who hold themselves out to the public as _willing_ to make a
bargain of certain types (frex, housing, public accommodation,
employment, education and other programs receiving Federal funding)
cannot invidiously discriminate between saying "yes" to some and "no"
to others, ON THE BASIS OF the refusenik's membership in some
protected classification (i.e., because of his/her race, creed, etc.).
> Free offer
> and acceptance are cornerstones of basic contract law.
I don't know whether you mean to be espousing a complete laissez-faire
approach to contracts and business law, but that's sure what it sounds
like. Just about every kind of economic regulation - whether
commercial law, or securities, or safety, energy, environmental, or
civil rights regulation that impacts on business in any way, _IS_ a
statutory restriction on the free right to contract at will, BASED ON
a public policy determination that such regulation is reasonably
necessary for the common good and that its scope is sufficiently
limited that it will not impact freedom of contract any more than is
necessary to accomplish that purpose.
> And the right
> of free association is likewise well understood through constitutional
> amendment and case law stretching back to the first Supreme Court
> decisions.
While we have complete freedom of association in our COMPLETELY
private affairs - no one FORCES you to have a Black or Jewish friend,
frex - the government DOES have a say in ACTIVITIES THAT IMPACT
COMMERCE or in which GOVERNMENT FUNDING is received. Which, these
days, means _almost_ anything. However, if you don't want to invite
me to your private dinner party because I'm Jewish, I still can't sue
you for that.
> But it has also been my understanding that the concept of places of
> public accommodation (POPA) goes back at least to the late Middle Ages
> in England when King's Inns were designated. Those inns were forbidden
> by royal decree from turning away anyone with funds, this being done
> to reduce the risk of assault or robbery by highwaymen.
However, if there _had_ been any Negroes in Jolly Olde England in
those days, I'm not convinced those laws would have been used against
any innkeeper who made the Negroes sleep in the woodpile. Or the
Jews or Gypsies, for that matter, forbidden by King's law to mingle
with good jolly Xians over a ham slice and a beer. Not that the beds
these travelers' inns offered for Anglo foax were luxo posture-
enhancers, either, nor were such accommodations guaranteed to be free
of bedbugs, lice, fleas, or fellow travellers (sharing a bed at the
inn with another guy was common - cheaper that way).
I also note that imposing the concept of such a duty on the innkeeper
of a one-night-stay traveller's inn was quite distinct from the
broader concept of an urban hotel, a spa or resort, or an upscale
restaurant, all of which were invented as places where rich people
went to visit and stay or eat for _fun_ and entertainment, not because
of necessity while they were far from home and hungry; and which arose
from the equally ancient English concept of a PRIVATE GENTLEMAN'S
CLUB, not a traveller's inn. Such upscale establishments catered
primarily to the gentility, with prices and exclusivity to match, and
were quite free to turn away those who did not fit into their selected
ambiance, on the basis of freedom of association.
> I had thought
> this concept worked into the common law and was imported to America,
> and thus into the foundation of our legal system.
Yes, the concepts of innkeeper law and common carrier law exist in all
states AFAIK. But those laws don't say what I think you think they
say. They have nothing to do with the topic Mr. DoGood brought up for
discussion, which is why I have now started this separate thread for
our unrelated discussion.
> Many/all states
> through statute outlaw protected class discrimination in POPAs,
But none of those, AFAIK, predate the 1964 Civil Rights Act; that Act
is what we've been talking about up til now. And those state and
local laws you mention in the preceding sentence did NOT evolve from
innkeeper or common carrier law; rather, they mostly derive from, and
closely track the language of, the 1964 Civil Rights Act, except they
may apply to broader fields of activity than Federal law and may also
cover a broader range of protected classes than Federal law. The
Federal law, of course, sets a _minimum_ acceptable level of
protection against discrimination, _below_ which the states are not
free to dip, although states are free to offer _additional_
protections to any protected classes state law designates.
> as do
> many federal laws and court cases involving interstate commerce.
Again, it sounds like you're referring to the 1964 Act and its later
amendments.
> State
> statutes generally define POPAs by class of establishment.
At this point I have no idea what you are talking about since you
appear to be conflating several basically unrelated areas of law into
one, without citing to anything. Do you have an example of the kind
of statute you're talking about? An actual citation to one, that
is?
> I have not
> done an exhaustive survey, but the Big Three--eating establishments,
> hotels/motels, and common carriers--would seem to be universal.
I still don't know what kind of laws you are talking about. Specific
examples, please, from a single state if you prefer, or from several.
> I have
> seen some state statutes (Texas?) that go into great detail (dentists
> offices, ice cream parlors), while others do not.
Examples of what you are talking about would be nice. WHAT aspect of
dentists' and ice cream parlors' business is being regulated here?
Are you still referring to specifically anti-discrimination
legislation?
> So, is there a special case under the POPA common law concept whereby,
> if there is no protected class discrimination, the very act of
> operating a POPA implies a prior statement that all valid offers will
> be accepted?
NO. To begin with, you are falling into the same ad-offer-acceptance
confusion that Mr. DoGood was. And, as I said earlier in his thread,
the provider's holding himself out to the public as a provider,
WITHOUT MORE, does not constitute a contractual "offer" that gives
every prospective customer a contract-law remedy if the provider
refuses to perform following the customer's "acceptance" of the
merchant's "offer." You cannot sue an innkeeper or common carrier for
failing to accommodate you if he has in fact run out of standing room
on the bus, or has no more rooms available at the inn. The
prospective guest might just have to wait for the _next_ bus, or sleep
in the stable.
OTOH the kinds of ad-as-offer we have been talking about before, _DO_
give the prospective customer a legally enforceable right (by bringing
a suit for breach of contract) if the merchant refuses to provide a
cash-paying customer with the offered goods, so long as all necessary
conditions of the offer have been met - OR the merchant must give the
customer a "rain check" to obtain identical merchandise or services at
an identical price as soon as the shelves can be re-stocked or the
hotel rooms or seats on the plane become available.
And I note that NONE of this has anything to do with Mr. DoGood's
scenario which dealt with the issue of forbidding walk-up customers to
use the drive-up windows at fast-food places, and whether that was
legal or not. Not to put too fine a point on it, but let's be clear -
many such stores DO have such a policy, and it is NOT illegal for them
to impose such a ban.
> can a license also require
> the POPA to enter contracts with all non-protected-class offerees who
> are acting legally?
Wow, you are mixed up.
First of all, it is (local or Federal) statutory anti-discrimination
law, NOT primarily the requirements of being a licensee or of a local
innkeeper statute, that force places of public accommodation not to
discriminate among customers on the basis of a protected
classification.
Second of all, you seem to be thinking of "membership in a protected
class" as something inherent in the person who is being discriminated
AGAINST, which is NOT the way the law is written. Rather, the law
seeks to PREVENT the person to whose conduct it applies (in this case,
the proprietor of a place of public accommodation, as defined by the
statute) from APPLYING a classification scheme to his prospective
customers if that classification is BASED ON some factor (race,
religion, national origin, etc) which the statute FORBIDS him to use
as a basis for giving DIFFERENTIAL TREATMENT to members of one such
class as opposed to others.
Your language leads me to assume that, frex, you think "black people"
is a "protected class," as if the statute were saying, "African-
Americans, as a 'class' deserve some _special_ consideration, some
'protection' against discrimination, which other races don't." THAT'S
NOT WHAT THE STATUTE SAYS. Rather, the 1964 Act (and its state
analogues) make it illegal for PROPRIETORS of such establishments to
even classify their customers _by_ "race" - so that RACE itself (not,
any particular racial group) is the "protected class" - and thus, ALL
that the phrase "protected class" means is that the persons to whom
the statute applies are FORBIDDEN TO CLASSIFY customers by that
characteristic, and forbidden to treat each such grouping differently
in doling out their goodies.
So, back to your original question, "can a license also require the
POPA to enter contracts with all non-protected-class offerees who are
acting legally?" Perhaps you can see now why this question makes no
sense. First, there is no such thing, in the abstract, as a "non-
protected-class offeree." ANY person can become a member of a
protected class for purposes of anti-discrimination law, but he
becomes so only WHEN THE VIOLATOR MAKES A PIGEONHOLE AND PUTS HIM IN
IT for purposes of differential treatment in provision of goods or
services, which is what the violator is FORBIDDEN to do.
That is, we are _all_ potentially members of a "race" classification,
all people are members of a "creed" classification (if you include, as
the statute does, _absence_ of any creed among the various creeds as
yet another such "protected classification"), all are members of a
"national origin" classification (is there anybody who doesn't come
from _someplace_?). None of that matters. What MAKES it matter is
when someone in a POSITION OF (PRIVATE) POWER OVER YOU says, "No gruel
for YOU, or no room at the inn for YOU, because you are a member of
("name of protected class"). E.g., "because you are a Wog" (racial
classification) or "because you are a Pole" (national origin
classification) or "because you are a Catholic" (creed classification)
or "because you are a pencil-neck geek" (handicap classification) or
"because you are a geezer" (age classification) or "because you are a
broad" (gender classification) OR, the OPPOSITE of any of those (i.e.
it is _just_ as illegal to discriminate against someone because he/she
is NOT Woggish, Polish, Catholic, geeky, elderly, female, etc.).
Yes, the proprietor REMAINS free to discriminate against anybody he
wishes, if such discrimination is on the basis of some characteristic
that does NOT amount to a "protected classification" under any
applicable anti-discrimination law. Thus, restaurateurs remain free
to ban pedestrians from their drive-up windows since "pedestrian" is
not a protected classification.
> If so, what of "No shirt, no shoes, no service" conditions?
In most places, those are legal. However, some jurisdictions - I
believe Washington, DC is one of them - have expanded their local anti-
discrimination law to cover "personal appearance" as a protected
class. Now, I DON'T KNOW whether such law would prevent you from
walking into, say, The Four Seasons wearing nothing but a pair of
surfer jams (no shoes, no shirt). However, I do urge you to continue
that research on your own, starting with the discussion at
http://www.dcejc.org/app/docs/Discrimination--General.pdf
> What of
> "We reserve the right to refuse to service to anyone for any reason"
> signs?
That's still legal, unless the "reason" falls afoul of a protected
classification _OR_ some other duty applies (getting back to your
travellers'-inn example of ancient English law, finally - and perhaps
that common law innkeeper duty not to leave travellers in the lurch
was the basis of the TX "last chance gas" case Mr. DoGood finally
brought up, just today).
> Could a restaurant refuse to serve all redheads,
Not _if_ the prospective red-headed customer can make out a case that
this was a pretext for discriminating against those whose ancestry is
at least partly Caucasian (the only people who are naturally red-
headed AFAIK), or Celtic, or Jewish, or Viking, or whatever racial/
religious/national origin category the PROPRIETOR thinks redheads
belong in. Remember, it is the proprietor's basis for classification
that matters, not anybody else's.
Frex, a Federal case a few years back in MD involved a neo-Nazi group
that painted swastikas on a local synagogue. They were brought up on
enhanced "hate crime" charges on grounds of _racial_ classification
(IIRC, the pertinent statute at the time did not provide enhanced
penalties for attacks based on _religious_ classification). In any
event, what I _do_ remember distinctly is the judge's ruling was that
the only "classification" that counted was what the neo-Nazis in the
defense box thought, NOT what anybody else thought. So, if the neo-
Nazis thought that Jews were a separate _racial_ classification, then
they violated that law, even though most people thought about being
Jewish as a _religious,_ not a _racial_ thing - or else, what would we
do with Sammy Davis, Jr.?
> or all left-handed customers,
Perhaps a southpaw could make out a case of handicap discrimination.
Remember, it's UP TO THE PLAINTIFF in the first instance to decide
what theory to pursue in a lawsuit; and then it is up to the judge to
see if the plaintiff's theory states a valid claim which _could_
provide a legal remedy, after which it is up to the factfinder to see
if they _accept_ that claim as providing a remedy in the particular
case.
> under a free association, or a freedom to
> contract, theory?
You've got it backwards. The "theory of liability" would be put
forward by the PLAINTIFF, the person who claims he was illegally
discriminated against. The proprietor doesn't have to come up with a
defense unless and until someone claims he did something wrong. But,
he is certainly free to _anticipate_ what kind of claims could
possibly be raised, and decide how much risk he is willing to tolerate
as to certain kinds of policies and practices he may want to instruct
his employees to take - assuming, of course, he even thinks about it
AT ALL. The _lack_ of any such thinking-ahead is IMO far more likely
most of the time.
> If there is no statute speaking to this either way,
> is there a common law argument for those redheads and southpaws?
No. Statutory only. Common law is still in "reserve the right to
refuse service" mode. Although, as noted above, the carrot-tops and
the sinister-handed folk _could_ conceivably craft an argument that
they were being treated differently due to a statutorily-forbidden
"protected classification" by a particular proprietor's actions.
We'd have to see a particular case, and all its circumstances, to say
more.
Steve Bartman
>> How does this statement square with "places of public accommodation"
>> laws?
>
>What laws are those, Mr. Bartman? Are you referring to Title II of
>the Civil Rights Act of 1964, as amended? See, frex, the 8th, 9th
>and 10th paragraphs of the FAQ at
>
>http://www.justice.gov/crt/housing/faq.php#t2
>
>I'm not sure why you feel any need to "square" the "public
>accommodation laws" with the concept of a "protected class" and the
>prohibitions on discrimination against members of such a class, Mr.
>Bartman. You seem to think these are 2 different statutory schemes;
>in fact, the "public accommodation laws" are just one part of the
>overall anti-discrimination statutory scheme which makes use of the
>concept of "protected class." If that's not what you meant, perhaps
>you could explain further.
This post and one embellishing my question crossed in mid-air. My
question doesn't related to the federal or state statutorily
established protected class provisions. I think it's clear on its face
that denial of service on the basis of membership in one of those
classes is illegal.
My question, and I think this is another of those areas where "what
I've always believed to be true" is about to be demolished by this
newsgroup, relates to service toward regular, non-protected class
customers and the denial of service to them in a POPA "just because."
Just because they have long hair. Just because "everyone knows"
they're a lady of easy virtue. Just because they aren't hip enough to
be seen in the latest hip place.
My dimly analyzed concept had been that there was a common law basis
for POPAs not to be able to reject customers who are otherwise lawful
simply because they ARE POPAs. That this class of commercial
establishment has certain public policy aspects that, say, a factory
or a warehouse business does not. No one would argue that I have the
right to enter a factory where I am not employed without explicit
permission of the owner. But I can enter a restaurant without explicit
verbal or written permission, simply because they hang out a sign
stating they're a POPA and I have a bona fide plan to lawfully enter
to purchase their product.
As I said in my other post, this concept flies in the face of the
right of association, basic contract law, and probably constitutional
property rights. But, licensing provisions often do involve merchants
dealing away some of those rights in order to secure an operating
license. I believe one example given in this thread was that of
sanitation inspections.
So, is there any accepted line where an establishment cannot simply
refuse service based on the owner's personal prejudice (assuming no
protected class status and legal behavior by the prospective
customer?) One can created hypos such as an isolated Alaskan village
with one eating establishment, where, if refused service, the customer
will die. Does that owner have the right to refuse service based on
contract law, free association rights, or other?
Steve
Steve Bartman
(Robert Bonomi) wrote:
>In article <ui4ff5t0egccqb96o...@4ax.com>,
>Steve Bartman <sbar...@visi.com> wrote:
>>On Sat, 07 Nov 2009 12:23:28 -0600, bon...@host122.r-bonomi.com
>>(Robert Bonomi) wrote:
>>
>>
>>>"We reserve the right to refuse service to anyone" still applies -- UNLESS
>>>it involves _illegal_discrimmination_ against a 'protected' class.
>>>"Pedestrians", or 'people on foot' are _not_ such a class.
>>
>>How does this statement square with "places of public accommodation"
>>laws?
>
>Got a cite to one?
>
>> Are they still in force in most jurisdictions?
>
>Good question! Repeating, got a cite?
Well, there are many POPA laws in many/most states, but the ones I
find relate to protected class discrimination. My question is more
related to common law behavior toward non-protected class customers.
See my response to Mr. Jacobs. Don't want to clog up the flow by
repeating.
As I said to him, I'm pretty sure I'm wrong on this. Just wondering if
there's a line that a POPA can't cross if protected class is not in
the mix. This is really a side-thread away from the pedestrian issue
presented by Mr. DoGood. I think that one's been thoroughly exploded.
Steve
Mike Jacobs
>
> > We have not been talking about ANY exemption, for anybody. �Before one
> > gets to the issue of "exemption" there has to be some basis to claim
> > there is a generally applicable DUTY in the first place.
> > it is that flawed assumption which is at the root of your
> > misunderstanding. � Are we on the same page now?
>
> You appear to be giving an opinion on a fact issue, that is one to be
> decided by a jury.
Wrong. Questions of existence of a duty are questions of law, to be
decided by the Judge, based on precedent. The Judge instructs the
jury on what duty the law requires; the jury decides, as a factual
issue, whether the defendant's actual conduct under all the
circumstances (as shown to them by the evidence) complied with that
duty.
Therefore, if you (hypothetically) filed suit against a fast-food
chain for banning pedestrians at their drive-thru window, your case
would almost certainly be thrown out of court before it ever reached a
jury - whether your theory was one of negligence, or one of offer and
acceptance in contract law, or one of discrimination against
pedestrians in civil rights law. Either theory would be subject to a
motion to dismiss for failure to state a claim on which relief could
be granted, or to summary judgment.
> What about another layer? Aren't there laws against false advertising?
Yes. Which is why, as you note below, there is often a lot of fine
print in ads.
And the point of this, re: advancing your argument, is?
> Why do offers for credit have that ubiquitous asterisk "* subject to
> approval"?
Because it _IS_. Otherwise, a court may interpret the ad _as_ an
"offer" and not as a mere "announcement." In some cases, such as sale
of securities, an ad also must be careful to state that it is not even
a "solicitation" to buy, merely an announcement.
> Isn't it part of the restaurant license to obey the law?
Actually, I would say the restaurant has to obey the law WHETHER OR
NOT any law requires it to be licensed, and regardless of what the
licensing requirements are in addition to the requirements of the law
that are generally applicable to everybody.
You have been talking about (as best I can tell) 3 main possible
theories for suing such a restaurant. Keep in mind that it is the
PLAINTIFF'S obligation (you, since you're the one complaining) to
sufficiently state the theory on which you claim some right; up until
now, you have not done so at all, and any sensible summary of what the
law requires in this context has been provided in this thread by
OTHERS, not by you. Nonetheless, various posters have discussed with
you the law regarding (a) tort liability for negligence, (b) contract
liability for failing to perform after offer and acceptance, or (c)
statutory liability for prohibited discrimination. We have also
explained to you, in detail, why none of those theories have any
reasonable chance of success.
> You seem to be saying "Where is the harm?"
No, not really. I am saying that, as a matter of negligence law,
every person owes the rest of the world a duty, to (1) BE AWARE of a
risk of harm, if any reasonable person would be aware of that risk
under the circumstances; (2) BALANCE the cost (in both time, money,
effort, OTHER harm that might result if the "cure is worse than the
disease," etc.) of taking various steps to avoid that harm versus the
seriousness AND likelihood of the harm that might result if such steps
were _not_ taken; and then to (3) DO those things that any reasonable
person would be required to do under all those circumstances, or
refrain from doing those things that _no_ reasonable person would do
under those circumstances.
The Judge explains that duty to the jury, then the jury decides if the
defendant acted reasonably - ASSUMING there is sufficient evidence in
dispute as to what a reasonable person would or would not do, to
create a jury issue. If the issue is clear-cut, the plaintiff may be
entitled to judgment as a matter of law (as in the case of someone who
gets rear-ended while stopped at a red traffic light) or the defendant
may be entitled to a dismissal (because, as a matter of law, the
plaintiff's claim fails to show existence of any duty on which relief
can be granted, even assuming every fact stated therein to be true).
In the situation under discussion - whether pedestrian walk-up
customers should be allowed to use the drive-up windows at fast-food
joints - yes, the restaurateur must do all those steps I outlined
above, just as ANY reasonable person must do. But in the typical
case, the risk of harm from pedestrian customers being hit by cars
WHILE IN THE DRIVE-THRU LANE is far GREATER (and, to the point, more
directly within the proprietor's CONTROL to DO something about it)
than the risk that, as in your hypo examples, the desperate pedestrian
might get hit by a motorist while attempting to cross the street to a
competitor's place after being refused service, or the risk that a
diabetic customer may die from lack of a milkshake after being refused
service.
So, ON BALANCE, negligence law requires the proprietor to take
REASONABLE STEPS TO PREVENT THE MORE LIKELY HARM, and one of the
EASIEST and most effective ways to do that is to keep the pedestrians
and vehicles from mixing in the drive-thru lane. THAT is why most
such stores have such an internally-created policy - no STATUTORY law
requires (or, needless to say, forbids) them to do so, but they do it
ON THEIR OWN because they (or their corporate legal departments, who
are paid to think of stuff like this) have concluded that THEY COULD
BE (SUCCESSFULLY) SUED IF THEY DON'T post such a sign, AND enforce it
by actually refusing service to pedestrians at the drive-up window.
The risk that they could ALSO be sued by a nutcase claiming that the
cars-only policy in the drive-thru lane caused them to go into a
diabetic coma, is one they are reasonably willing to take, and is one
they would reasonably expect to win at the dismissal or summary
judgment stage.
> But if you scroll back, I
> envisioned cases where the subject would be harmed.
Right. I assume you are referring to those Rube-Goldbergian
situations of desperate diabetics or boulevard-crossing sprinters in
which, like Mrs. Palsgraf's famous case against the Long Island
Railroad, the sequence of events causing the harm is so remote and
unforeseeable from the POV of the defendant (the one accused of
failing to adequately take reasonable steps to look out for the safety
of others) that the Judge can decide, as a matter of law, proximate
cause does not exist, or that no duty exists. See
http://www.courts.state.ny.us/history/cases/palsgraf_lirr.htm
> By the way, I, personally, would not consider it adequate to say
> "drive-through window only opened after 9pm" because we are talking
> about someone approaching that window, and not one complaining against
> it.
I have no idea what you mean by that distinction.
> What we are essentially talking about is refusal of service to
> anyone who does not arrive in an arbitrarily configured, and
> presumbaly motorized, vehicle.
Now you're adding a new element. AFAIK most such stores' policies
simply ban walk-up customers from using the drive-thru window. So,
go ahead and get in line for the drive-thru window on your bicycle, or
your rickshaw, or your Amish buggy. Whether a solo rider on horseback
would be allowed is an interesting question but, I don't see why not.
If the sign simply says, "No walk-up customers at this window," a
horseback rider is not a walk-up customer (although the horse, if he
orders raw oatmeal to go, is).
> Suppose an airport hot-dog concession declares that only people with
> carry on luggage get to eat. --I don't think so.
Now you're just being ridiculous. Such a rule would be both
arbitrary and capricious, and would have no relation to any reasonable
safety goal. You are consistently ignoring the safety rationale
behind fast-food places' no-walkup policies.
You are also raising a new element by referring to airport
concessions. OTHER laws and/or contractual requirements may apply to
a concessionaire within a confined, regulated space such as an airport
concourse, that DO NOT apply to a restaurant out on a public street.
The very name "concession" indicates that the operator of the airport,
park, government building (or whatever) in which the concession is
located, contractually "concedes" to the merchant a right to do
business at a particular location within the operator's bailiwick,
upon certain conditions, which (typically) include a duty to act as a
PUBLIC UTILITY or common carrier would. That is, the concessionaire
MUST hold themselves out to provide service to all comers who can pay
the price (which is ALSO regulated by the operating agency) at least
until their goods run out (for common carriers, too, there is no duty
to offer a prospective passenger a seat if the plane or bus is already
full). The rationale for this requirement, of course, is that people
who are (in effect) confined within the secured area of an airport or
similar restricted location have NO REAL CHOICE but to use one of the
authorized concessionaires for those services if they need them.
> There are precedents for others you mention. In Texas there was a last-
> chance-gas case, where as best I could understand it, the judge ruled
> the defendant had a duty to sell gas, but was excused in declining
> service because gas was available at the opposite corner of the
> intersection. I believe the price was five cents per gallon higher and
> the plaintiff was awarded 50 cents.
Where's your reference to that case? I said _personal_ anecdotes
would be acceptable, but if you want to refer to some historical or
reported event, I want a cite to a URL where I can find it and read it
myself to see what it actually says. Until you do so, I regard that
story as apocryphal, an urban legend, just like all of the fake cases
that get re-published periodically as the so-called "Stella Awards."
I repeat, foax, THOSE CASES ARE ALL FAKE. MADE UP. ANTI-PLAINTIFF
PROPAGANDA. See http://www.snopes.com/legal/lawsuits.asp
> I always heard that anyone had the right to sue anyone for any reason.
Yes. They do, but that's irrelevant, and also does not advance your
argument. There is no threshold requirement, in USA, before a
prospective plaintiff can walk in the door of the Courthouse, hand a
Complaint to the court clerk, pay the required filing fee, and
commence a lawsuit. But, that doesn't mean they are likely to be
SUCCESSFUL.
What we have been discussing in this thread is such a suit's
likelihood of success. You are entitled to your opinion, Sir, but the
law holds that there are some matters as to which reasonable people
cannot differ, and those things are the ones on which the Judge may
make a ruling as a matter of law. The absence of any enforceable
common law duty of a restaurant with a drive-up window to permit walk-
up customers to use that window, is one such thing as to which, as a
matter of law, reasonable people cannot differ If you persist in
disagreeing with that, all you are proving is that you are not being
reasonable.
Although I have, with considerable patience up until now, given you
the benefit of the doubt, I generally make it a point not to argue
with unreasonable people. So, I think I'm done with this thread now.
Stuart A. Bronstein
> bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>
>> �Postulating that you
>> do assert that such a responsibility exists, precisely what is
>> the 'scope' and/or 'limits' of that responsibility? �i.e. what
>> actions does it require, and what does it -not- require?
>
> That would be decided by a jury or a licensing agency, not by a
> judicial administrator and not by us.
Sorry, but no. The law describes what the duty is, and the judge
decides if the allegations constitute a violation of a duty. The
jury only decides if the facts exist that establish the duty.
Stuart A. Bronstein
> Mike Jacobs <mjacobs...@gmail.com> wrote:
>
>> We have not been talking about ANY exemption, for anybody.
>> �Before one gets to the issue of "exemption" there has to be
>> some basis to claim there is a generally applicable DUTY in the
>> first place. �If this whole discussion goes back to your
>> mistaken assumption that an advertisement constitutes an OFFER
>> which any member of the public may ACCEPT and thereby form a
>> binding contract, imposing a legally enforceable duty to
>> perform upon the one who holds himself out as a provider, it is
>> that flawed assumption which is at the root of your
>> misunderstanding. � Are we on the same page now?
>
> You appear to be giving an opinion on a fact issue, that is one
> to be decided by a jury.
What issue of fact would that be? An advertisement is normally
considered an invitation to make offers, not an offer itself.
That's an issue of law, not fact. If there are facts that change
that rule, enough evidence would have to be shown to that effect.
And whether enough there is enough evidence (or at least
allegations of evidence) is also a legal issue, not a factual one.
> What about another layer? Aren't there laws against false
> advertising? Why do offers for credit have that ubiquitous
> asterisk "* subject to approval"? Isn't it part of the
> restaurant license to obey the law?
You're mixing apples and oranges. Certainly false advertisement is
against the law. The asterisk in offers of credit shows people
that they are (supposedly) giving all necessary facts - you just
have to take the time to read the footnote.
> By the way, I, personally, would not consider it adequate to say
> "drive-through window only opened after 9pm" because we are
> talking about someone approaching that window, and not one
> complaining against it. What we are essentially talking about is
> refusal of service to anyone who does not arrive in an
> arbitrarily configured, and presumbaly motorized, vehicle.
So you think saying "Open After 9" must imply that a customer can
arrive by any means they choose? The fact is that they are open
after 9 - but you have to approach in a way that they feel is safe.
You sound like the guy who sued Time Magazine because he received
an envelope from Time that had printed on it, "Open to receive a
Free Watch." He opened the envelope and it turned out he had to
make a purchase to get a free watch - opening the envelope wasn't
good enough.
The court threw his case out, saying that his claim and the
difference between what they apparently promised and what they were
giving was too trivial to sue over.
> Suppose an airport hot-dog concession declares that only people
> with carry on luggage get to eat. --I don't think so.
People without carry-on luggage are not a legally suspect class. I
know of no law that says they can't be discriminated against.
> I always heard that anyone had the right to sue anyone for any
> reason.
You have the right to sue, but not the right to win.
Stuart A. Bronstein
>>>Is there something in the application for a restaurant license
>>>that specifically and explicitly waives rights?
>>
>>Yes.
>
> Can you find that explicit statement in some application?
It's not necessary in the application. It's in the law.
Stuart A. Bronstein
>>Which clearly indicates that the restaurateur does not "have the
>>right," as you stated, to exclude the inspector.
>
> That's a philosophical issue, I guess. I would say he does have
> that right, and there are consequences of exercising it.
By that reasoning you could say that you have the right to murder
someone - it just carries some consequences if you do.
Seth
David Chesler <che...@post.harvard.edu> wrote:
>On Nov 8, 12:37�pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>> Only in very limited circumstances does such an apparent solicitation
>> flip over and constitute a formal _offer_ to sell a particular item to
>> any and all comers,
. . .
>> once the claimant DOES all those things, he has
>> CHANGED HIS POSITION TO HIS DETRIMENT (by doing those things, instead
>> of doing something else) in RELIANCE on the promise the merchant made
>> to ANY AND ALL persons who were able to fulfill the condition.
>
> How is it not to the would-be customer's detriment to be at the 24-
>hour McDonald's but be refused service because he arrived by unicycle
>rather than by car instead of cooking dinner, or to be at the
>supermarket with a carriage full of groceries that took time to select
>instead of being at the checkout of some other supermarket that didn't
>induce him to come in with the sign announcing certain items at
>certain prices?
It is to his detriment. The issue is whether he relied on a _promise_
made by the business. A typical advertisement is not such a promise,
even without the usual weasel wording there is, at best, the usual
"reasonable person" criterion (e.g. the restaurant didn't expect the
Big Eaters Convention to descend on them, so they ran out of food).
Calling a business "24-hour" is not a promise; near where I used to
live, there was a supermarket that called itself that, but wasn't
always open (depending on day of the week mostly).
Again, the "reasonable person" criterion applies: for instance, if you
fill a shopping cart at a supermarket which then refuses to sell to
you because you're wearing a blue shirt (not a protected class), that
isn't reasonable: they should have told you it was "no blue shirt day"
before you went to all that effort. On the other hand, if the power
goes out and their cash registers aren't working, it's a lot more
reasonable for them to refuse to sell.
Seth
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>On Nov 8, 11:37�am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
>> We have not been talking about ANY exemption, for anybody. �Before one
>> gets to the issue of "exemption" there has to be some basis to claim
>> there is a generally applicable DUTY in the first place. �If this
>> whole discussion goes back to your mistaken assumption that an
>> advertisement constitutes an OFFER which any member of the public may
>> ACCEPT and thereby form a binding contract, imposing a legally
>> enforceable duty to perform upon the one who holds himself out as a
>> provider, it is that flawed assumption which is at the root of your
>> misunderstanding. � Are we on the same page now?
>
>You appear to be giving an opinion on a fact issue, that is one to be
>decided by a jury.
Whether there is a duty is a matter of law. Given the law, whether a
specific incident involves violation of that duty is an issue of fact.
>What about another layer? Aren't there laws against false advertising?
Yes, there are. But an advertisement isn't necessarily false just
because it isn't fulfilled. There's an issue of intent as well.
> Isn't it part of the restaurant license to obey the law?
Everyone has to obey the law, whether or not licensed for anything in
particular.
>By the way, I, personally, would not consider it adequate to say
>"drive-through window only opened after 9pm" because we are talking
>about someone approaching that window, and not one complaining against
>it. What we are essentially talking about is refusal of service to
>anyone who does not arrive in an arbitrarily configured, and
>presumbaly motorized, vehicle.
Are people who don't arrive that way a protected class in any state?
>Suppose an airport hot-dog concession declares that only people with
>carry on luggage get to eat. --I don't think so.
They can't (not aren't allowed to, are unable to) accomplish that.
They can at most declare that _they_ won't sell to such people.
Reverse the issue: suppose a business at an airport declared that
people _with_ luggage would not be admitted. There might well be
business reasons for that (e.g. small crowded store with breakables).
Many airport food businesses offer a discount to airport employees; is
that illegal discrimination against passengers?
>There are precedents for others you mention.
Some restaurants have recognized food critics and refused to admit
them. The penalty is that they don't get reviewed.
>I always heard that anyone had the right to sue anyone for any reason.
They do. Winning is another issue entirely.
Seth
Deadrat
news:Xns9CBE563845A6Bs...@130.133.1.4:
I think there are two distinct cases. One is that the law specifically
mandates inspections and makes refusal of entry a criminal offense. This
obtains in Illinois. I might expect to see an acknowledgment clause in an
Illinois restaurant license, but I wouldn't expect to see a waiver. (And I
don't know where else it would go.) There's nothing to waive, since the
law has preempted a licensee's right to refuse entry.
In other jurisdictions, obtaining a license might require a specific waiver
of the right to refuse entry. In that case, I would expect to see the
waiver on a restaurant license. Refusal of entry would mean suspension of
the license (and whatever bureaucratic procedures go with it), but it's not
a criminal offense.
I don't think this is simply a matter of semantics. But it wouldn't be the
first time I was wrong. Today.
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>On Nov 8, 12:31�pm, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
>> �Postulating that you do assert that such a responsibility exists,
>> precisely what is the 'scope' and/or 'limits' of that
>> responsibility? �i.e. what actions does it require, and what does
>> it -not- require?
>
>That would be decided by a jury or a licensing agency, not by a
>judicial administrator and not by us.
No, the _existence_ and _terms_ of such a responsibility are a matter
of _law_. Given that information, whether such a responsibility was
violated is an issue of fact.
>> If you believe that there are laws requiring physicians to give care, it is
>> _YOUR_ duty/responsibility to _locate_ and provide a citation to such a law,
>> since it is *impossible* (both in 'practical' and 'theoretical' terms) to
>> prove that no such law exists.
>
>I'm not talking about putting people in jail for crimes, I'm talking
>of loss of license.
In any case, there still has to be a law or regulation specifying that
a licensed physician is required to give care under some
circumstances. Can you provide a citation to either, or to some case
law?
(I'm sure there are situations, such as a physician employed in a
hospital emergency room, or one who has started to give care; but I
don't believe there are circumstances where an arbitrary physician who
happens to be present is required to give care.)
Seth
Deadrat
40be-91f9-7...@t2g2000yqn.googlegroups.com:
Nobody. But your question is inapt. Seth wanted to know how the 4th
Amendment could be reconciled with Illinois inspectiion law preempting the
right to refuse entry-on-demand to private property (in this case,
restaurants).
Seth
Silence DoGood <Silence...@angelic.com> wrote:
>On Nov 7, 10:32�am, Deadrat <a...@b.com> wrote:
>> se...@panix.com (Seth) wrote innews:hd1i4d$h0$2...@reader1.panix.com:
>> > How is that reconciled with the Fourth Amendment?
>>
>> The 4th Amendment prohibits "unreasonable" searches.
>
>Who says you can't waive your 4th ammendment rights such as by
>applying for a restaurant license?
Do you have a list of actions which waive Constitutional rights? How
does a specific action get on that list?
Seth
Deadrat
> In article <a4cbf51g1069es9ro...@4ax.com>,
> Cy Pres <c.p...@yahoo.com> wrote:
>>On Fri, 6 Nov 2009 16:16:13 +0000 (UTC), se...@panix.com (Seth) wrote:
>>>In article <gtidna5CjLP81G7X...@giganews.com>,
>>>Deadrat <a...@b.com> wrote:
>>
>>>>(410 ILCS 650/11) (from Ch. 56 1/2, par. 77)
>>>> Sec. 11. Except as hereinafter provided, the Department of
>>>> Public
>>>>Health shall enforce this Act, and for that purpose it may at all
>>>>times enter every such building, room, basement, inclosure or
>>>>premises occupied or used or suspected of being occupied or used for
>>>>the production, preparation or manufacture for sale, or the storage,
>>>>sale, distribution or transportation of such food, to inspect the
>>>>premises and all utensils, fixtures, furniture and machinery used as
>>>>aforesaid </quote>
>>
>>>>Should he do so in Illinois, he's guilty of a misdemeanor.
>>
<snip/>
> What happens when a Health Inspector demands access to, say, an
> employee's locker?
The law (see above) allows the health inspector to enter anywhere food is
prepared and inspect anything concerned with food preparation. I'd say
this means that there are parts of a restaurant not connected with food
preparation and that these are off limits.
<snip/>
> As I've said, the Health Department has every right to *close* the
> restaurant if inspection is not permitted. Surely that protects the
> public sufficiently from anything that restaurant might serve.
Not in the eyes of the state of Illinois.
> Seth
>
Deadrat
> In article <v1lbf5d7g9s9ocgsr...@4ax.com>,
> Daniel R.Reitman <drei...@spiritone.com> wrote:
>>On Fri, 6 Nov 2009 16:26:39 +0000 (UTC), se...@panix.com (Seth) wrote:
>
>>>So it appears that the owner _can_ exclude the Health Department, and
>>>will have his license suspended or revoked (and the restaurant closed)
>>>as a result.
>>
>>Which clearly indicates that the restaurateur does not "have the
>>right," as you stated, to exclude the inspector.
>
> That's a philosophical issue, I guess. I would say he does have that
> right, and there are consequences of exercising it.
>
> If he didn't have the right, when the inspector showed up and he
> attempted to exclude him, the inspector could get the police and force
> his way in.
And in Illinois possibly arrest him. Refusal is a crime in Illinois.
> Rather, when he chooses to exclude the inspector, the
> inspector stays excluded, and fails the restaurant (forcing it to
> close).
Not necessarily in Illinois.
> Seth
>
Timothy
> I agree with Mr. Bonomi, at least in the kind of contract we have been
> talking about on this thread, where the prospective buyer's order
> constitutes the "offer" and the seller's agreement to provide buyer
> with the items on that order constitutes the seller's "acceptance",
> with the exchange of goods for money then constituting the necessary
> "consideration." � A merchant can't refuse, with impunity, to serve a
> person who holds a properly obtained coupon, or who came to the store
> because of a "We'll give a $20 3-course meal for $1 to the first 100
> people in line" ad if that person is #1 through #100 in line, or such,
> in circumstances where the coupon or ad itself legally constitutes an
> "offer." �(Such a merchant may be legally obligated to give some
> customers a rain check, if he runs out before the time and/or quantity
> stated in the ad expires). �
KFC refused with impunity in May 2009 to honor coupons for a two-piece
grilled chicken meal. It was a badly designed promo which was tied to
the Oprah show: word of this promo spread beyond even Oprah's huge TV
audience and tens of millions of coupons were printed up on home PCs
of people (including me) who don't watch the show. Franchisees ran
out of chicken (which they weren't being reimbursed for) and customers
were displeased to the point of near-riot. The fine print on the
coupons allowed the KFC stores to in fact refuse with impunity to
honor the coupons, and store did just what the fine print allowed them
to do. Rain checks were eventually offered--- bit for PR reasons, not
legal reasons. KFC was not legally obligated to offer rain checks .
I am wondering in retrospect if this whole thing may have been a scam:
even though the free publicity was bad, it was still publicity. KFC
certainly did draw my attention to something which otherwise would
have escaped my notice in spite of an expensive ad campaign: i.e., I
became aware that KFC now sells grilled as well fried chicken. I am
just one of 300 million or so potential customers who definitely did
get the word.
Mike
> I always heard that anyone had the right to sue anyone for any reason.
You have the right to bring suit (in just about all cases. There have
been VERY rare cases where someone's been barred against any future
lawsuits.) But you don't have the right to PREVAIL in all cases and, if
it can be seen that the reasonable person would realize they couldn't
have prevailed, you may be sanctioned for bringing the suit (but you
can't be barred from the initial bringing of it. Just like you can say
anything you want, but you might have consequences AFTER for such speech.)
Cy Pres
>>What's unreasonable about inspecting restaurants? Restaurants are not
>>private houses.
>The Fourth Amendment applies to businesses as well.
The public policy behind the near prohibition of government invasion
into one's home does not apply with equal force to restaurants open to
the public. A greater degree of regulation is justifiable.
>> The public is already able to enter them.
>The public may enter *part of* the restaurant.
The public is directly impacted by what goes in in the employees only
area of the restaurant. There is a legitimate state interest in
ensuring the safety of food served to the public and restaurant
inspection statutes are rationally related to that goal.
Robert Bonomi
Silence DoGood <Silence...@angelic.com> wrote:
>
>
>... Isn't it part of the restaurant license to obey the law?
_WHAT_ law? Show the statute you believe such a restaurant is violating.
No hand-waving claims that there 'must be some such law' "just because"
you believe that's the way things 'should be'. *PROVE* it -- show us
the law you think they're violating -- it doesn't matter if it's municipal,
county, state, or federal level.
>You seem to be saying "Where is the harm?" But if you scroll back, I
>envisioned cases where the subject would be harmed.
Irrelevant, and immaterial. There are no laws that prohibit the unqualified
act of 'doing harm'. There are laws that prohibit doing certain kinds of harm
in specific circumstances, but they _do_not_ generalize to "any/every"
situation.
>By the way, I, personally, would not consider it adequate to say
>"drive-through window only opened after 9pm" because we are talking
>about someone approaching that window, and not one complaining against
>it. What we are essentially talking about is refusal of service to
>anyone who does not arrive in an arbitrarily configured, and
>presumbaly motorized, vehicle.
"We
>Suppose an airport hot-dog concession declares that only people with
>carry on luggage get to eat. --I don't think so.
And just what statute would they be violating if they _did_ do so?
It's a 'questionable' business practice -- *NOT* from any standpoint of
legality, but from the _business_ standpoint of reducing revenues for
'no good reason'. However, that said, it *IS* the prerogative of the
business to make such a decision.
>I always heard that anyone had the right to sue anyone for any reason.
Or even for 'no reason'. And that is entirely true -- unless one has
a track-record of merit-less cases, and has been declared a 'vexatious
litigant'.
Of course, there is a _big_ difference between filing a suit, and _winning_
it. A suit against the "cars only" drive-up lane operator would be
_extremely_ unlikely to survive a prelim. hearing on a motion for summary
dismissal.
Robert Bonomi
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Nov 8, 10:56 pm, Steve Bartman <sbart...@visi.com> wrote:
>> On Sat, 07 Nov 2009 12:23:28 -0600, bon...@host122.r-bonomi.com
>>
>> (Robert Bonomi) wrote:
>> >"We reserve the right to refuse service to anyone" still applies -- UNLESS
>> >it involves _illegal_discrimmination_ against a 'protected' class.
>
>talking about on this thread, where the prospective buyer's order
>constitutes the "offer" and the seller's agreement to provide buyer
>with the items on that order constitutes the seller's "acceptance",
>with the exchange of goods for money then constituting the necessary
>"consideration." A merchant can't refuse, with impunity, to serve a
>person who holds a properly obtained coupon, or who came to the store
>because of a "We'll give a $20 3-course meal for $1 to the first 100
>people in line" ad if that person is #1 through #100 in line, or such,
>in circumstances where the coupon or ad itself legally constitutes an
>"offer."
I'll quibble with Mr. Jacobs on the 'coupon' hypothetical, a little.
The merchant _can_ refuse the coupon-holder 'service' _at_the_time_, if
that person is in violation of _other_ conditions that the merchant
routinely imposes on _all_ customers -- e.g. "No shirt, No shoes, No
service." "Equity" probably requires that (a) said person be counted
against the 'first 100 in line', *and* (b) that the barred-for-other-
reasons coupon-holder is given the opportunity to redeem the coupon at
a later date (i.e., a 'rain check', or something similar).
If we change the coupon deal a little, to, say, a free bottle of an
expensive wine with purchase of dinner for two, and the coupon-holder
shows up "falling-down drunk" -- a degree of inebriation such that it
is a violation of the terms of the restaurant's liquor license to serve
any alcohol to said person -- then it's *not* at all clear that the
merchant 'owes' the refused customer _anything_.
> (Such a merchant may be legally obligated to give some
>customers a rain check, if he runs out before the time and/or quantity
>stated in the ad expires).
Complete agreement on that, subject to any lawyer-inserted 'weasel wording'
on the 'offer', e.g. 'limited quantities', 'while supplies last', etc.
*grin*
Also complete agreement that this tangent is irrelevant to the OP"s issue
regarding refusing to serve pedestrians in a restaurant drive-up lane. :)