# Old Tort laws made more sense.

Discussion in 'Ethics, Morality, & Justice' started by Dinosaur, Apr 23, 2017.

1. ### DinosaurRational SkepticValued Senior Member

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Many decades ago, the tort laws included a concept of degree of responsibility. For example, consider a case from a few years ago.

On her way to work, A woman bought coffee from a MacDonalds drive in & probably a hamburger, cheeseburger, or MacMuffin (The account only mentioned coffee, but few people buy only coffee on their way to work).

She spilled the coffee in her lap & was burned. She sued Macdonalds for a large sum (over a million, I think) which was awarded (I think the award was reduced on appeal due to excessive punitive damages). Her suit was based on the high temperature of the coffee, which I think was claimed to be 180 degrees.

Gee: I wonder how many people prefer lukewarm coffee.

Under the old laws, the court could assign a degree of responsibility. Under current laws, the party with deep pockets can be sued for the entire amount.

Under the old laws, the court could assign responsibility of zero to 100% to the woman & the remainder (if any) to MacDonalds.

It seems to me that the old laws were more reasonable.

A person driving a car & drinking coffee should be considered at least partially responsible for spilling the coffee. I think 50% would be too low a degree of responsibility, especially if she was holding something in her other hand.

Note that politicians are often lawyers. Note also that lawyers are good at lobbying for laws which favor them.

Being able to sue the party with deep pockets for the entire amount surely benefits lawyers who typically get a percentage of the award in lawsuits. The plaintiff is often unable to pay an attorney up front, which would probably be cheaper than the typical 30 to 50% of the amount awarded.

3. ### BellsStaff Member

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She didn't just suffer burns, like minor burns.

She suffered full thickness burns. In other words, she suffered 3rd degree burns to her pelvis and thigh area, not to mention her groin and buttocks area as well. She required skin grafts and surgeries, not to mention rehabilitation and an insane amount of care and pain relief.

This wasn't just hot coffee, but scalding coffee. If you want an example of how hot this was, fill up your kettle, set it to boil. When it has boiled, pour the contents into your lap. The burns you would suffer would be comparable to what this woman suffered.

She was not driving a car, but was in the passenger seat. The car was stationary when the incident occurred.

Really, it would help if you actually got things correct.

She actually received much less than $1 million. She had initially sought$20,000 from McDonalds to cover her medical bills from the horrific burns she had suffered. McDonalds refused. Which is when she took them to court.

You should also consider the fact that over a period of 10 years, leading to her burns, McDonalds had received over 700 complaints and reports of severe burns from their coffee, and they had settled quite a few of them prior to being sued. The reason being that their coffee was not just hot, but actually scalding. They were aware of the problem and refused to rectify it. Many of the previous complaints from other customers, were of 3rd degree burns, that were similar to Mrs Liebeck's.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving.

McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

There is hot coffee and then there is coffee that can cause third degree burns if consumed. McDonalds had known for years, that the temperature they served their coffee could cause serious injuries and had caused serious injuries in hundreds of people, and they still failed to not only lower the temperature of their coffee, but they also failed to adequately warn customers of the danger of their coffee, which was scalding compared to everywhere else one can buy coffee from. Their own quality assurance manager testified that the temperature of their coffee was very dangerous and not fit for consumption. But they sold it at that temperature anyway.

I would suggest you find another case to complain about tort law. Because pushing a misleading story, ignoring the realities of that case, the horror this woman endured and a huge company that knew their product could cause severe injuries and failed to rectify it or warn their customers of the particular dangers of their product, is not the right way to complain about tort law. Mrs Liebeck deserved much more than she ultimately received.

5. ### DinosaurRational SkepticValued Senior Member

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I remembered the 2.7 Million originally awarded, which seemed excessive to me. My not infallible memory apparently had other errors.

Mea Culpa for the memory errors.

7. ### DinosaurRational SkepticValued Senior Member

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BTW: I still believe that the old tort laws made more sense than the current laws which allow going after the deepest pockets, paying no attention to degree of responsibility.

8. ### C CConsular Corps - "the backbone of diplomacy"Valued Senior Member

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Since citizens use lawyers as their proxies for either coercing largesse or raiding the wealth of a community via litigation, there's an echo here of a classic cynicism about democracy (quote at bottom). With that mode of empowerment given to them (including from corporations and industry), combined with the buttonholing and ascent into political leadership, there is this semblance of lawyers reaching a stage where they are the ones pulling the puppet-strings of a nation to their own lucre.

Due to combining-form problems which result from "law" being part of their very title, but also their being mediators of the law, then "nomocracy" might have to clumsily suffice for "government by lawyers" in a second-hand fashion of the term. At any rate, it seems to be an eventual (albeit disguised and unofficial) type of rule / phase which democracies may slide into.

- - - - - - -

[*] Mis-attributed to Alexander Fraser Tytler and others: "A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship. The average age of the world's greatest civilizations from the beginning of history has been about 200 years. During those 200 years, these nations always progressed through the following sequence: From bondage to spiritual faith; From spiritual faith to great courage; From courage to liberty; From liberty to abundance; From abundance to selfishness; From selfishness to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage."

Last edited: Apr 23, 2017
9. ### TiassaLet us not launch the boat ...Staff Member

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The McDonald's Coffee lawsuit myth persists, despite being repeatedly debunked. People pretend the only issue is that coffee is hot or not, when that's only part of it. So here's a question: What if my cups are safe to a certain temperature? What if above that temperature the cup starts to lose its shape integrity and firmness? What if in the rush to fulfill orders according to the standards my store requires, sometimes the lids don't get put on properly? What happens if we're serving coffee above temperature? And what happens when my employee improperly puts a lid on a coffee cup that is losing integrity on an occasion that the extraordinarily hot coffee spills?

For whatever reason, nobody ever complains about the Domino's result making pizza delivery impossible. Probably because that involves cars, and most of us understand enough that we wouldn't ever pretend it was just about the idea that traffic accidents happen. Oh, right, and we don't get to razz a woman for spilling her coffee.

I'm just curious, though, what old tort laws any of this refers to. Historical and behavioral research suggests people tend to look recall the past favorably, as if there is some golden age to be rediscovered. This point occurs to me bceause the reference to old in comparison to new is precisely and entirely vague beyond function.

10. ### rpennerFully WiredStaff Member

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Dinosaur's claim about the good old days seems to lack a statement of the problem.

Greenman v. Yuba Power Products (1963) decided that design flaws in consumer products could not be easily swept under the carpet of the limitations of a manufacturer's warrantee.
“The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve this purpose fitfully at best.” “To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the [product] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [product] unsafe for its intended use.” https://casetext.com/case/greenman-v-yuba-power-products-inc

1940-1992 saw the state-by-state erosion of the judicial doctrine that not-for-profit organizations were immune from lawsuits.
Many courts, while addressing the issue of the charitable immunity doctrine, concluded that charitable organizations presumably have control over the activities of their employees and volunteers, and thus should have the ability to take precautions to guard against injuries caused by such activities. Moreover, since the solvency of many not-for-profit organizations is no longer in question, not-for-profit organizations are now in the position to exercise better management and make certain of the safety and compliance of their operations.

Since charitable immunity is no longer available, courts are now “free” to apply the doctrine of respondeat superior, making not-for-profit corporations vulnerable and potentially liable for the torts of their volunteers in the same manner that employers can be vicariously liable for their employees’ actions.
http://www.icnl.org/research/journal/vol4iss2_3/art_3.htm

Finally, here is a point where Dinosaur got it backwards:
1960-now has seen states which used to embrace contributory negligence doctrine (where a defendant who is as little as 1% to blame for an accident would be barred from recovering any amount from the person who was 99% to blame) was replaced with the doctrine of comparative negligence with just five states holding to the older standard. Under comparative negligence in some states a 1%-at-fault victim could recover 99% of his damages while in other states, the victim could recover full damages (so long as the victim was less than 50% at fault).

In these cases, the pendulum has swung in favor of the victim, not because of a demonization of the party with the large pockets, but because the older system was biased against the consumer, biased against the victim who wasn't 100% perfect, biased for the saintly image of not-for-profit organizations which in reality may be just as dysfunctional a for-profit companies.

11. ### RandwolfIgnorance killed the catValued Senior Member

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In the interest of picking nits, this particular bit didn't jive with my memory. The mean temperature of McDonalds coffee isn't all that different from other establishments - in fact, it is sometimes lower:

http://digitalcommons.fiu.edu/cgi/viewcontent.cgi?article=1372&context=hospitalityreview

Which has little to do with the price of coffee in China...

12. ### SeattleValued Senior Member

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I think the OP also has little understanding of tort laws, old or new. Also, who buys coffee and a hamburger in the morning? The whole post is ridiculous.

13. ### BellsStaff Member

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The jury awarded her $2.7, because of how McDonald's acted and responded to her, because this was an issue had had been raised more than 10 years prior to that. They had received over 700 complaints and claims for compensation for burns for their coffee, some just as severe as hers. So they knew it was a problem. The amount the jury awarded was basically a percentage of one day's income for the company itself. That was knocked down quite substantially in court. They eventually settled out of court for a much lesser amount. She had initially requested funds for her medical bills and care, as she needed fairly extensive skin grafts and many surgeries and burns care, which is frankly awful and traumatic and McDonald's, knowing their coffee could cause 3rd degree burns, refused to pay. It absolutely kills me that people keep referring to this case as a frivolous lawsuit. It is so far from the truth. Mrs Liebeck was not a wealthy woman, who suffered horrific burns, required multiple surgeries and burns treatment because McDonald's coffee was being sold at boiling point. She had initially asked for$20,000 from McDonald's to cover the cost of her injuries. McDonald's only offered her \$800. That is when she sued them. It was never about the money, but really about trying to force McDonald's to change the temperature of their coffee to prevent further injuries.

This is a huge company, with a bevy of corporate lawyers, who literally went on a public relations campaign, painting her lawsuit as frivolous and questioning her reasoning because 'hey, everyone knows coffee is hot, right?'.. The reality was that their coffee went beyond just being hot. It caused full thickness burns. I have seen the photos of her burns in law school. And they went to through to the bone. As I said, if you want an indication just how burnt she was, boil water up to the point where it is actually boiling and pour the volume of a cup of that boiling water into your lap. Her injuries were severe and extreme.

McDonald's had been aware that their coffee could cause 3rd degree full thickness burns, in just a couple of seconds on contact with skin, for over a decade and still demanded that their restaurants hold their coffee at that temperature and their warnings were not even sufficient to convey the risk to customers. Even their own staff advised that their coffee was not consumable, because of how dangerous it was. They even tried to argue that people who bought their drive-thru coffee would not drink it right away, and would usually wait until they arrived at home or work before drinking it. This is what they argued in court. But discovery showed that they had been aware and their own internal survey's showed that people who purchased their coffee drank it straight away.

When Liebeck brought her case against McDonald's, their corporate lawyers literally tried to smear her as money hungry, abusing the tort system with a frivolous case, and the media and people bought into it, thinking 'duh, coffee is hot, it's her own fault'.. that this was as frivolous as it got. This poor woman lived with being abused for that for 10 years, before she died. There was a documentary about her case, several years ago, and it was only then, that people actually started to realise just how bad her injuries were, and how much she suffered and how fucking awful McDonald's were about it. But the myth of that being a frivolous lawsuit lives on. And it is exceptionally far from frivolous.

Tort law reform does need to happen. But Mrs Liebeck's case is not and should never be an example of a frivolous lawsuit. When a huge corporation knows their product is that dangerous and keeps selling it for over a decade, despite numerous reports of severe burns from its customers, then they should be made to pay for the injuries they cause. I liken it to car companies that sell cars with defective breaks, knowing that they are defective, but figure that the number of cars sold compared to reports of defective breaks, made it worthwhile to do nothing about it. That is essentially what McDonald's did. Their own quality assurance managers and others within the company had advised the coffee was not fit for consumption. They chose to ignore it and the many reports of severe burns from customers, because 'hey, the coffee is selling well!', so it was worthwhile to them to do nothing about lowering the temperature of their coffee or warning their customers of the risk of their product.

It wasn't a memory error, Dinosaur. You simply bought the myths that McDonald's lawyers spread about the case being frivolous. I'll put it this way, I could not even post the images of the burns she suffered on this site, because they were that severe and distressing to look at.

This study was conducted several years after her case went to court, and all temperatures of hot coffee in that study was much lower than the 180 to 190 degrees fahrenheit McDonald's used to sell their coffee prior to and up to Liebeck's case.

Mrs Liebeck suffered her injuries in 1992. McDonald's had been fielding complaints and reports of burns from their coffee since the early 80's. The graph you posted is from 1997 and 2002, several years after Liebeck's lawsuit. They did bring the temperature of their coffee down quite substantially after that lawsuit in most of their outlets. Some in the late 90's still kept their coffee at 180F.

14. ### RandwolfIgnorance killed the catValued Senior Member

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Please understand that I am not disputing that McDonalds served/es coffee at dangerously high temperatures - rather that other outlets also keep their coffee too hot. I knew the chart I posted here was not the one I originally saw but I can't find it. It was from a 1986 case and McDonalds was not the sole offender (although perhaps the most egregious):

Then there was the matter of Mrs. Liebeck's attorney. While recuperating from her injuries in the Santa Fe home of her daughter, Mrs. Liebeck happened to meet a pair of Texas transplants familiar with a Houston attorney who had handled a 1986 hot-coffee lawsuit against McDonald's. His name was Reed Morgan, and ever since he had deeply believed that McDonald's coffee is too hot. For that case, involving a Houston woman with third-degree burns, Mr. Morgan had the temperature of coffee taken at 18 restaurants such as Dairy Queen, Wendy's and Dunkin' Donuts, and at 20 McDonald's restaurants. McDonald's, his investigator found, accounted for nine of the 12 hottest readings.
http://www.marlerblog.com/uploads/f...ssue, Jurors Say, In Case of Burned Woman.pdf

From this passage we can see that there were at least three restaurants with coffee hotter than that of McDonalds back in '86. McDonalds and the others still serve coffee hotter than you can drink it - I double dawg dare any of the "frivolous lawsuit" conspiracists to grab a fresh cup from their favorite fast foodie hangout and try chugging it - nice talkin' to ya' : )

Further, to the OP - the "concept of degree of responsibility" still exists. Even in this case, Liebeck's award was reduced by 20% due to her share of responsibility:

The jury found for the Plaintiff on her claims of product defect, breach of implied warranty, and breach of the implied warranty of fitness for a particular purpose. The jury also found that Plaintiff was twenty percent at fault.
http://abnormaluse.com/2011/01/stella-liebeck-mcdonalds-hot-coffee.html

15. ### BellsStaff Member

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Yes, they found her 20% at fault because she had placed the cup on her knees, when she lifted the lid to stir in sugar. But this was also in the days where cup holders were not common, and the car she was in did not have a cup holder.

The court also found McDonald's to be reckless, in how despite repeated reports of severe burns from customers, they still chose to sell their coffee at that temperature, without any warnings to customers that the products would cause severe burns if they came into contact with it immediately upon purchasing it.

And yes, okay about your point in regards to how hot the coffee was in other stores. From law school and everything I have read about it since then, McDonald's coffee was found to be some of the hottest and it always came across that others did not have theirs at scalding temperature at the point of sale. I had read that several others brewed their coffee at that temperature, but also allowed it to sit for 30 minutes before serving it, so that it cooled down quite considerably, so that it was not scalding hot when served to customers. McDonald's own internal survey's and studies at the time, showed that other establishments sold their coffee 30 or so degrees cooler.

• McDonald’s admitted at trial that its coffee is “not fit for consumption” when sold because it causes severe scalds if spilled or drunk;

• McDonald’s admitted at trial that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then required temperature;

• McDonald’s admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

• Liebeck’s treating physician testified that her injury was one of the worst scald burns he had ever seen.

• McDonald’s did a survey of other coffee establishments in the area, and found that coffee at other places was between 30-40 degrees cooler.
• Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

16. ### pjdude1219screw watergate i want to know about zaragateValued Senior Member

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actually that statement does not allow us to see that 3 restaurants had coffee hotter than mcdonald's in fact mcdonalds could have held spots 1-8 and 12 and that statement would still be correct..

17. ### RandwolfIgnorance killed the catValued Senior Member

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Good point - logically, you are correct. The only reply I can give to that is McDonalds did not have the "hottest" coffee in any of the charts I have seen. They do have the highest incidence of temperatures above mean and their "cooler" cups amounted to a degree or two. Since I cannot find the chart I saw circa the time of the actual case (early '90s) I have to concede.

Which still doesn't change my underlying point - they all (yes, a generality) need to turn the temp down a bit. The reason they do this in the first place is... wait for it... money, naturally. At the higher brewing temperatures you get more cups per pound of raw coffee - something like one extra cup per pound if memory serves me. I can't find the study that actually says that either, although allusions abound - perhaps this was all one article "back in the day." Maintaining the higher temperatures after brewing keeps it fresh longer (this statement is subject to the same disclaimers as the "more cups per pound"). From HuffPo:

Wagner claims that McDonald’s keeps its coffee at dangerously high temperatures so that it tastes fresh for longer periods of time and less coffee is wasted.

“Despite over 1,000 complaints from customers about being burned by the coffee, McDonald’s still continues to brew the coffee at such an exceptionally high temperature,” Wagner said. “They are saving more in production costs in brewing coffee and serving at such high temperature than it costs them to settle the cases with these people who have been injured.”​

18. ### DinosaurRational SkepticValued Senior Member

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As per Bells Post #12: In the final outcome, some degree of blame (20%) was attributed to the plaintiff.

My issue was that in many (most?) cases the entity with deep pockets is considered responsible for all of the damages.

I was not aware that Macdonalds in this case did not pay the entire amount.

I wonder what the assessment would have been if a passenger in the car had spilled the coffee on the plaintiff instead of the plaintiffs spilling it.

19. ### BellsStaff Member

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And in those cases, the organisation or company is completely responsible and at fault, hence why they are responsible for all of the damages.

For example, say a company knowingly sells or provides an item that it knows is faulty and can and will cause injury or death and provides no warnings to the consumer. Who is at fault when people are injured or die as a result of using that product?

Say a car manufacturer sells a brand of car that it knows has faulty brakes or steering and people die and are injured as a result of those manufacturing faults? Do you think the car should be liable or made to pay compensation to consumers and their next of kin, for knowingly selling cars with the faulty brakes or steering?

Take Tesla, for example. A week or so ago, they issued a recall notice for tens of thousands of their cars, due to faulty brakes. Now, let's imagine they did not do a total recall or any recall and did not warn customers that a particular model of their cars may have faulty brakes, or they fail to notify new customers buying this model car, that the brakes are faulty. If people die or are injured, should they be held responsible for failing to act on a known problem, which they knew would result in injury and/or loss of life? I would be hard pressed to find anyone who would argue that companies who fail in their duty of care, should not be held responsible.

20. ### wellwisherBannedBanned

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5,160
Back in the day, culture assumed more self reliance and more personal responsibility. With the rise of liberalism, there was a push toward more feeling of dependency, so government could grow by providing a new range of services.

Under this socio-political philosophy, only the big entity is responsible; McDonalds, since the average Joe, is made more dependent. Trial lawyers, who donate mostly to Democrat party candidates, supported this dependency philosophy, since this was going to be good for business.

The dependency angle works in conjunction with the anti-business propaganda to help direct juries to the benefits of lawyers.

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22. ### SarkusHippomonstrosesquippedalo phobeValued Senior Member

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Back in which day? Or is this just to signify that you're referring to an unspecified time so as to absolve you from having to support your claims?
How far back are you going? You do know that the notion of recompense for being wronged has been around for rather a long time. That it originally had nothing to do with US political parties, only with the notion that actions by one person resulting in loss to another should in some instances be recompensed?
And when was this rise of liberalism? Care to offer anything by way of clarification, support etc?
Trial lawyers mostly donate to the democrat party candidates? Care to support this with anything? Not saying it's not true, but such a claim should probably be supported before it is taken as truth on your say so.
Both sides get lawyers. You do know that, right?

And is there a topic on this website where you don't get out your right-wing hammer to rail against every possible left-wing nail you think there is?

23. ### wellwisherBannedBanned

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5,160
Back in the day, was before the liberal take over of culture, beginning in the 1960's. The baby boomers, were taught by parents, who had sacrificed in WWII, to prevent the world from being overrun by the Germans and the Japanese. The men and women of that time volunteered out of personal responsibility. Religious training, which was bigger then, was about responsibility for being a moral person, not dependent on personal impulse and whims. If you overate, this was called gluttony; personal responsibility. Over eating was not due to the baker being so good at making pastries, he was liable for you being overweight. If a child was walking, tripped and fell,j he would be taught to watch his step. You would not call a lawyer and try to blame the city for a pothole. A reasonable person should be able to make this judgement call and avoid the pothole.