mozart
Senior Cook
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?