"Discover Cooking, Discuss Life."

Go Back   Discuss Cooking - Cooking Forums > The Back Porch > Off Topic Discussions
Reply
 
Thread Tools Display Modes
 
Old 07-10-2008, 04:22 PM   #41
Senior Cook
 
mozart's Avatar
 
Join Date: Dec 2007
Location: SW Florida
Posts: 420
Quote:
Originally Posted by jennyema View Post



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

Yeah, it always is

Everything I've read says the restaurant has the order pad, the kitchen ticket, and the computer order all saying Chicken Oscar.

While I agree, Ruby Tuesdays will likely settle for monatary damages, that doesn't mean they are liable, only that they don't want further publicity than necessary.

The main point is, the relatives are saying "they want RT to change something so this won't ever happen again." Without the man telling them of his allergy, what they are really saying is they want all restaurants to never make an ordering mistake again. That is not going to happen.

In the end, the only logical, practical fix is that folks who know they have acute allergies must let the restaurant know, and carry an EPIPEN.

Let me ask you a hypothetical. Would the restaurant been protected if they had posted a sign saying, "If you have a food allergy, let your waitress know?
__________________

__________________
mozart is offline   Reply With Quote
Old 07-10-2008, 04:35 PM   #42
Senior Cook
 
mozart's Avatar
 
Join Date: Dec 2007
Location: SW Florida
Posts: 420
Quote:
Originally Posted by GB View Post
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.
Hi GB:

We are talking degree here. Unless there was a crab based ice cream on the menu than of course he needn't tell.

We are also talking about the degree of allergy. An allergy that makes you sick for a while is one thing, but most folks that have allergies to seafood know that it will kill them. This puts a little more responsibility on them. Mistakes happen. If you or your kids had such an allergy, you would surely carry an EpiPen.

I don't disagree with folks who say you should get what you order. But if your life is on the line, you can't just depend that stressed out folks in a restaurant won't make a mistake that can kill you
__________________

__________________
mozart is offline   Reply With Quote
Old 07-10-2008, 04:38 PM   #43
Chief Eating Officer
 
GB's Avatar
 
Join Date: Jul 2004
Location: USA,Massachusetts
Posts: 25,509
Quote:
Originally Posted by mozart View Post
Hi GB:

We are talking degree here. Unless there was a crab based ice cream on the menu than of course he needn't tell.

We are also talking about the degree of allergy. An allergy that makes you sick for a while is one thing, but most folks that have allergies to seafood know that it will kill them. This puts a little more responsibility on them. Mistakes happen. If you or your kids had such an allergy, you would surely carry an EpiPen.

I don't disagree with folks who say you should get what you order. But if your life is on the line, you can't just depend that stressed out folks in a restaurant won't make a mistake that can kill you
I do not disagree with anything you said here mozart. In the end, when it comes right down to it (and again I am not talking legalities here. That is for the lawers to fight about) it is the responsibility of the person with the allergy. No doubt about it.

Like you said, we are talking about degrees here. My ice cream example was meant to be extreme, but somewhere between ordering ice cream and ordering crab legs there is a gray area.
__________________
You know you can't resist clicking
this link. Your eyes will thank you. VISUAL BLISS
GB is offline   Reply With Quote
Old 07-10-2008, 04:40 PM   #44
Master Chef
 
jennyema's Avatar
 
Join Date: Mar 2002
Location: Boston
Posts: 9,272
His wife claims he ordered the other chicken, not chicken Oscar.

Why would someone with a deadly allergy to crab knowlingly order something with crab in it?

The fact that RT discloses the ingredients may hurt them here .... by who knows.

What the relatives are saying is "we want money."

I think it would help their defense if restaurants had a prominent blurb in their menu to this effect ...."If you have a food allergy, let your waitress know?"

But it may not absolve them of liability if someone doesn't tell them.
__________________
Less is not more. More is more and more is fabulous.
jennyema is offline   Reply With Quote
Old 07-10-2008, 04:42 PM   #45
Master Chef
 
jennyema's Avatar
 
Join Date: Mar 2002
Location: Boston
Posts: 9,272
Quote:
Originally Posted by mozart View Post
I don't disagree with folks who say you should get what you order. But if your life is on the line, you can't just depend that stressed out folks in a restaurant won't make a mistake that can kill you

I agree with that entirely. People should go out of their way to protect themselves if they have a life-threatening allergy. But it doesn't mean the restaurant isn't responsible if they don't.
__________________
Less is not more. More is more and more is fabulous.
jennyema is offline   Reply With Quote
Old 07-10-2008, 05:03 PM   #46
Executive Chef
 
Join Date: Oct 2007
Location: Mooresville, NC
Posts: 3,102
Quote:
Originally Posted by GB View Post
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.
If you are ordering food at a restaurant that cooks and serves the food you are allergic to, you should most definitely inform the restaurant. It's not like an ice cream shop serves crab ice cream but a restaurant that serves a mix of safe and non-safe (to the allergic person) food should be advised and, quite honestly, why wouldn't you want to inform the server if for no other reason than your own safety.
__________________
Callisto in NC is offline   Reply With Quote
Old 07-10-2008, 05:16 PM   #47
Executive Chef
 
Join Date: Oct 2007
Location: Mooresville, NC
Posts: 3,102
Quote:
Originally Posted by jennyema View Post
His wife claims he ordered the other chicken, not chicken Oscar.
I like your use of the word "claims" because I seriously wonder. Why does the restaurant have triple back up verses just the woman's words?
__________________
Callisto in NC is offline   Reply With Quote
Old 07-10-2008, 05:36 PM   #48
Executive Chef
 
miniman's Avatar
 
Join Date: Aug 2006
Location: Basingstoke, England
Posts: 4,687
Quote:
Originally Posted by mozart View Post
"I am a lawyer and I think this is probably more complicated than this."

Yeah, it always is

Everything I've read says the restaurant has the order pad, the kitchen ticket, and the computer order all saying Chicken Oscar.

While I agree, Ruby Tuesdays will likely settle for monatary damages, that doesn't mean they are liable, only that they don't want further publicity than necessary.

The main point is, the relatives are saying "they want RT to change something so this won't ever happen again." Without the man telling them of his allergy, what they are really saying is they want all restaurants to never make an ordering mistake again. That is not going to happen.

In the end, the only logical, practical fix is that folks who know they have acute allergies must let the restaurant know, and carry an EPIPEN.

Let me ask you a hypothetical. Would the restaurant been protected if they had posted a sign saying, "If you have a food allergy, let your waitress know?
Is not the kitchen ticket & the computer order all based on the information on the order pad so these three points are all the same especially if the waitress misheard the order. But this should be picked up if she read it back.
__________________
"For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others." - Nelson Mandela
miniman is offline   Reply With Quote
Old 07-10-2008, 06:41 PM   #49
Chief Eating Officer
 
GB's Avatar
 
Join Date: Jul 2004
Location: USA,Massachusetts
Posts: 25,509
Quote:
Originally Posted by Callisto in NC View Post
It's not like an ice cream shop serves crab ice cream
That is where you are potentially wrong though. How do you know that ice cream shops do not sell crab ice cream? Of course you can read the menu, but if you don't happen to read every entry then you could miss one.

Who would have thought that there would be someone who would make trout ice cream? What about tomato ice cream? Garlic? Squid? Avocado? Habanero peppers? Onion? Yet all of these things have been made into ice cream. Just because crab ice cream does not sound like something that would ever be made that does not mean that it does not happen. If a deadly crab allergy like this guy did and you made that assumption and went to a place that just happened to make something like that then there would be a cross contamination issue and you could die. Yes it is unlikely, but it most certainly is possible.
__________________
You know you can't resist clicking
this link. Your eyes will thank you. VISUAL BLISS
GB is offline   Reply With Quote
Old 07-10-2008, 09:52 PM   #50
Master Chef
 
Join Date: Jan 2008
Location: Cicero, IL
Posts: 5,093
Quote:
Originally Posted by miniman View Post
Is not the kitchen ticket & the computer order all based on the information on the order pad so these three points are all the same especially if the waitress misheard the order. But this should be picked up if she read it back.
That was my thought as well, everything else is based on what she wrote, so it is no surprise it all matches. If it didn't, then we would know where the mistake was made.
There are too many questions around this for anyone to have any answers right now. Did the waitress read the order back? Did he glance at the menu and read off the wrong dish by mistake? Was he committing suicide in such a way as to possibly provide money for his family?
Who knows... stay tuned to Court TV to find out, LOL.
__________________

__________________
Maverick2272 is offline   Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off



» Discuss Cooking on Facebook

Our Communities

Our communities encompass many different hobbies and interests, but each one is built on friendly, intelligent membership.

» More about our Communities

Automotive Communities

Our Automotive communities encompass many different makes and models. From U.S. domestics to European Saloons.

» More about our Automotive Communities

Marine Communities

Our Marine websites focus on Cruising and Sailing Vessels, including forums and the largest cruising Wiki project on the web today.

» More about our Marine Communities


Copyright 2002- Social Knowledge, LLC All Rights Reserved.

All times are GMT -5. The time now is 05:00 AM.


Powered by vBulletin® Version 3.8.8 Beta 4
Copyright ©2000 - 2016, Jelsoft Enterprises Ltd.