Man Dies After Ruby Tuesday Serves Him Wrong Dish

[Callisto in NC]

Are we talking about the article in the first post? If so then no where in that article does it say the man was eating what he thought was crab.

No, the article in a later post.

 

[GB]

OK I see it now. Even still, it does not say when he knew he was eating crab. It could have very possibly been that he put it in his mouth and then knew he was eating crab, which at that point would be too late.

 

[Bigjim68]

I'm sure will hear more about this. And maybe even hear the whole story.

I was always mad about coffee from McD story, until recently I learned the whole story. Even though the woman was stupid enough to put the cup between her legs it was the discrenatal emploee who turned the heat in the coffee pot so hot that her skin melted.

So until we know the whole story here, there is nothing that we can say or decide.

I disagree with your assessment of the overheated coffee in the MD story. Water boils at 212 degrees, and will not get hotter unless it is pressurized. I make coffee at boiling temperature, and expect it to be served hot. On the other hand, I do not put paper cups of hot liquids between my legs and drive off. Unless the patron informed MD's that she was going to put the coffee between her legs and wanted cold coffee. I do not see how a restaurant should be responsible. I'm not sure about the subject story. Seems to me that I were deathly allergic to something, I would be positive that I was not eating it. If I ordered a chicken dish without seafood, and got crab, not vegetables, I somehow feel I would have been suspicious and checked before I tasted the dish. Too often people sue first and ask questions later, and we all pay.

 

[Barbara L]

If he was allergic to seafood, I couldn't imagine he would eat it if he knew beforehand that it had crab in it. I would think he would be able to smell crab.

My thinking is that if the man did not tell the server that he was allergic to seafood, and the restaurant is found liable, things could drastically change at restaurants. I can picture people having to fill out and sign a survey or statement naming all foods, spices, drinks, etc. that they are allergic to, before being seated.

I know someone who cannot go to most of the steak restaurants around here when she has her kids with her because most of them serve buckets of peanuts. Her son is so allergic to peanuts that he had a bad reaction when someone who had eaten a peanut butter sandwich earlier kissed him on the cheek. At age seven he is aware of what he can and cannot eat, and he is not afraid to ask questions. He doesn't automatically trust that something doesn't have peanuts just because someone says it doesn't. I know he has asked me to read the label of something I offered him. Another boy, who was in my 4th grade class a few years ago, was the same way. If the school cafeteria served something different, he asked the cafeteria manager what was in it, and he specifically asked about peanuts. If we had a class party, he checked the ingredients out. And when we did our "How to Make a Peanut Butter and Jelly Sandwich" paper, he wrote about making a jelly sandwich, and when the class got to make their sandwiches, when they had finished their papers, he made a jelly sandwich. Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.

Barbara

 

[krichardson]

As someone who has a serious allergy to food, I would like to share my opinion. When I eat out at restaurants if the dish I order does not have avocados in it I never mention that I am allergic to them. I assume that I will receive the dish that I ordered as is off the menu. I think that the restaurant should be liable if the dish that the customer ordered is not the dish that they received. I know that for me personally I have only reacted to avocados 3-4 times in my life. However each reaction has been significantly worst than the last. I also know that my body tells me immediatley that something is not right in what I am eating, and I will stop eating. However one bite will make me ill. (The last reaction was 3 years ago and after 2 small slices anaphalatic shock started.) Anyways I feel that if the restaurant got the order wrong, it's there fault. I would sound like a crazy person if everytime I ordered food I told the server, by the way no avocado, mango, banana, kiwi, or chestnut please, when there is none of that in the dish to begin with. If the customer ordered a dish with seafood and did not mention his allergy then he is to blame, but otherwise he was ordering a dish he could eat with no problem. (he should have been carrying an epi pen though!)

 

[jennyema]

Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.

Barbara

The menu clearly stated the ingredients in their chicken dishes.

Supposedly read the menu, which listed all the ingredients, and ordered one without crab:

"Chicken Bella
Slices of sautéed baby portabella mushrooms and artichokes in Parmesan cream sauce over a fresh, grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes."

He could have verified that the dish didn't have crab in it by asking the server or the manager. Both would have assured him that the dish he ordered had no crab in it.

But he was served the wrong dish. A dish very similar in appearance to the one he ordered.

"Chicken Oscar
Tender jumbo lump crab meat with asparagus tips and lemon-butter sauce atop a fresh grilled chicken breast. Served with fresh, steamed broccoli and mashed potatoes"

We have no idea what the crab looked or smelled like when it was sitting atop that chicken. It may have been under another garnish. He obviously didn't realize there was crab on it. If you know you are very allergic to something you are not knowingly going to eat it.

He probably took a bite and thought "Oh Crap!!"

 

[elaine l]

I think if I had a serious allergy to any food I would tell my server so that extra care could be taken not to give me the wrong dish or for cross contamination. My niece's bf has an allergy to nuts and I was made aware of it when they started dating.

It is a shame that happened.

 

[mozart]

OK, I'm not a lawyer, so this is just an opinion. I think Callisto is on the right track.

The courts have ruled that restaurants are not always liable when food is not served as ordered. For example, if you get clam shells fragments in your clam chowder, or bones in your fish, or pits in your cherry cobbler. The reasoning is that these items are a natural part of the food, so a patron has to assume they may be present and take precautions. Even when the patron asks beforehand, "Is there bones in your fish?", the restaurant has not been held liable.

Is there anyone on this site who hasn't ordered at a restaurant and gotten the Wong dish? I have on more than one occasion. Even more common would be to say, "Give me ______, but no onions or tomatoes."
Maybe a 1000 times for that one.

I think a normal, reasonable person has to assume that a restaurant may not follow their ordering instructions and be prepared to take whatever the appropriate action is. For most of us, that is either accept it, or send it back. Again, maybe I just pull the onions or tomatoes off and eat it.

However, suppose I'm allergic to even a small amount of onion or tomato juice, that will obviously be left on the dish? Then, of course, I send it back and tell the waitress that I am highly allergic.

It is my opinion, and not as a lawyer, that the court may well find that someone who is aware that they have an acute allergy to a food, has an obligation to inform the restaurant personnel when ordering and perhaps even a further obligation to inspect their served food for that particular item.

Chicken Oscar and Chicken Fresco, as described, would not seem to be hard to distinguish from one another, BEFORE that first bite.

 

[Callisto in NC]

Although it was probably a fluke, the man in the article could have possibly avoided dying if he had been as conscientious as these kids.

Barbara

This was my thought too. I know kids with the peanut problem. They tell the server at every restaurant, and they don't look like freaks at all, because nuts can be in things you don't even think about. Restaurants who use peanut oil can "cross contaminate" (for lack of a better word) utensils from the peanut to the regular, tongs for example. The same can happen with fish products. If someone is that allergic to the point it will kill them, they won't look like a freak telling the server, they'll look conscientious.

 

[Callisto in NC]

OK, I'm not a lawyer, so this is just an opinion. I think Callisto is on the right track.

Chicken Oscar and Chicken Fresco, as described, would not seem to be hard to distinguish from one another, BEFORE that first bite.

Thanks mozart.

Another thing that we'll never know is did he really order fresco and not be understood. I have relatives in New York who say things and I'm like WHAT? Oscar and Fresco can sound very similar. If he had informed the restaurant of the allergy and the server heard "oscar" she could have, would have questioned the order or at least clarified. How many times have you said something and been heard saying something else? It's happened to me.

I don't think it's about what's ordered by the person either. Not all menus list each and every item in a dish. I know a lot of times at Mexican restaurants I find hidden treasures not mentioned on the menu. Sure, in this case the Chicken Oscar says "crab" but not every restaurant menu is like that.

Err on the side of caution, always tell your server about your allergies.

 

[jennyema]

OK, I'm not a lawyer, so this is just an opinion. I think Callisto is on the right track.

The courts have ruled that restaurants are not always liable when food is not served as ordered. For example, if you get clam shells fragments in your clam chowder, or bones in your fish, or pits in your cherry cobbler. The reasoning is that these items are a natural part of the food, so a patron has to assume they may be present and take precautions. Even when the patron asks beforehand, "Is there bones in your fish?", the restaurant has not been held liable.

Is there anyone on this site who hasn't ordered at a restaurant and gotten the Wong dish? I have on more than one occasion. Even more common would be to say, "Give me ______, but no onions or tomatoes."
Maybe a 1000 times for that one.

I think a normal, reasonable person has to assume that a restaurant may not follow their ordering instructions and be prepared to take whatever the appropriate action is. For most of us, that is either accept it, or send it back. Again, maybe I just pull the onions or tomatoes off and eat it.

However, suppose I'm allergic to even a small amount of onion or tomato juice, that will obviously be left on the dish? Then, of course, I send it back and tell the waitress that I am highly allergic.

It is my opinion, and not as a lawyer, that the court may well find that someone who is aware that they have an acute allergy to a food, has an obligation to inform the restaurant personnel when ordering and perhaps even a further obligation to inspect their served food for that particular item.

Chicken Oscar and Chicken Fresco, as described, would not seem to be hard to distinguish from one another, BEFORE that first bite.

I am a lawyer and I think this is probably more complicated than this.

Certainly the plaintiff's negligence action would be stronger if he or she informs the restaurant of their allergy before ordering. But think a reasonable person has the right to assume that a restaurant will serve them the food as described and as they ordered it. If a menu lists the ingredients in a dish, I think you have the right to assume that those are the only ingredients used. If you know it is safe for you to eat those things, and you order what is safe for you, then I think you can make a pretty good argument that the restaurant is negligent if they serve you something different, whether you inform them of a food allergy or not.

You might even try an "eggshell plaintiff" argument. Eggshell skull - Wikipedia, the free encyclopedia

Of course I could argue the other side, too.

My point is that it's not so cut and dried and courts will always differ. A court in Oregon could find for the plaintiff and a court in Iowa could find for the defendant using exactly the same fact pattern.

But I am guessing that the vast majority of food allergy cases are settled and not litigated

 

[ironchef]

I disagree with your assessment of the overheated coffee in the MD story. Water boils at 212 degrees, and will not get hotter unless it is pressurized. I make coffee at boiling temperature, and expect it to be served hot. On the other hand, I do not put paper cups of hot liquids between my legs and drive off. Unless the patron informed MD's that she was going to put the coffee between her legs and wanted cold coffee. I do not see how a restaurant should be responsible. I'm not sure about the subject story. Seems to me that I were deathly allergic to something, I would be positive that I was not eating it. If I ordered a chicken dish without seafood, and got crab, not vegetables, I somehow feel I would have been suspicious and checked before I tasted the dish. Too often people sue first and ask questions later, and we all pay.

+1

That lady was just a moron. If you put a cup of hot coffee between your legs and then burn yourself, you deserved to get burned for doing something as stupid as that.

 

[B'sgirl]

Someone with food allergy may not want to state it everywhere he goes as if it is a handicap or something. My son has Celiac, and even though he is just little, I doubt he as he gets older he wants to tell everyone everywhere he goes that he can't have gluten. He will want to live as normal a life as possible. He should be able to order a salad with no dressing or croutons without having to inform the waitress that if he eats anything that has touched a crouton his stomach will bloat and he will have diarrhea for the next two days.

 

[GB]

Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?

The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.

 

[ironchef]

Like Callisto pointed out, I think the key is whether or not the patron informed the restaurant before hand of his allergy, or just ordered a dish because it didn't have crab on it. Right now, it's a "he said, she said" situation. The problem is if he didn't inform the restaurant, he also was taking a possible chance with any cross contamination. Even if he supposedly ordered a dish with no crab on it per se, there could still have been traces of crab with the tongs, cutting board, plate, etc. etc.

If I had a food allergy that was so severe, I would definitely inform the restaurant to ensure that any food that I ordered would not come into any contact with anything that would set off my allergy. This would also help to ensure that the food handlers would be extra careful when preparing my food. If we are informed of a diner with severe allergies, we get a clean cutting board and prepare their dish from scratch. If any part of their dish needs to be deep fried, we may heat up a sauce pot with fresh oil depending on their allergy.

 

[ironchef]

Someone with food allergy may not want to state it everywhere he goes as if it is a handicap or something. My son has Celiac, and even though he is just little, I doubt he as he gets older he wants to tell everyone everywhere he goes that he can't have gluten. He will want to live as normal a life as possible. He should be able to order a salad with no dressing or croutons without having to inform the waitress that if he eats anything that has touched a crouton his stomach will bloat and he will have diarrhea for the next two days.

Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.

 

[ironchef]

Where do you draw the line? If the man was ordering ice cream should he have to tell the person behind the counter that he is allergic to crab? If he is ordering a cheese pizza does he have to mention it?

The person with the allergy is responsible to make sure that what goes into his/her mouth does not contain anything that they are allergic to, but you can not expect a person to mention it every single time they order food. It is ultimately their responsibility (I am not talking legally), but common sense needs to be used as well.

I don't think it's an issue if you're going to a specialty restaurant like an ice cream parlor or a pizza joint that doesn't have any crab on their menu. Like you said, common sense plays a part. However, if you're going to full service restaurant, then precautions need to be taken. Many places double the cold foods station as salad/cold apps and desserts, so yes, there COULD be a possibility of cross contamination between say, a crab louie and your ice cream sundae.

 

[GB]

Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.

Depending on the severity of the allergy cross contamination might not be enough to trigger a reaction.

 

[B'sgirl]

Have you ever heard of cross contamination? If you don't inform the restaurant that you're ALLERGIC to something vs. you just don't want something, you're basically playing roulette. It's your responsibility to take control of what you're eating.

Yeah, we know about cross contamination alright. It's a pain to work around sometimes. I suppose mentioning it to the restaurant would depend on how severe the problem is. If it was a life/death thing I'd be sure to mention it.

 

[GB]

I don't think it's an issue if you're going to a specialty restaurant like an ice cream parlor or a pizza joint that doesn't have any crab on their menu.

The point is though that you can never be 100% sure unless you ask. I have seem (as I am sure you have) ice creams that had flavors in them that you would not expect. Wasn't it Iron Chef that had a trout ice cream? Now if you go into one of these ice cream places that had 50 or 60 or more flavors and you don't happen to read every single one then for all you know their could be a crab bisque ice cream on the menu. You really can never be sure unless you ask and even them you are relying on someone who may or may not give you accurate info.

I know if I had an allergy as severe as this guys then I would try to be as vigilant as possible when ordering out. From time to time I am sure I would take reasonable chances though. It would get very old very quick telling every restaurant or eatery I go to that I am allergic to xyz. From time to time I would take the change and not say anything assuming that the menu is accurate and I will be safe. It is no doubt not the safest thing, but I am human afterall and will act like normal humans act.