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Old 07-10-2008, 03:17 PM   #31
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OK, I'm not a lawyer, so this is just an opinion. I think Callisto is on the right track.
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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
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Old 07-10-2008, 03:52 PM   #32
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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.
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Old 07-10-2008, 03:55 PM   #33
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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.
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Old 07-10-2008, 04:00 PM   #34
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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.
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Old 07-10-2008, 04:02 PM   #35
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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.
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Old 07-10-2008, 04:04 PM   #36
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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.
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Old 07-10-2008, 04:09 PM   #37
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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.
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Old 07-10-2008, 04:09 PM   #38
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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.
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Old 07-10-2008, 04:12 PM   #39
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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.
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Old 07-10-2008, 04:20 PM   #40
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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.
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