July 08, 2008

Restaurant: Man Ordered Dish That Killed Him

WELL, THE CHUTZPAH AWARD of the day goes to the Ruby Tuesday chain of restaurants, which when faced with the untimely death of a customer who was served an entree containing seafood, insisted the man ordered the dish that killed him.

The Atlanta Journal-Constitution has the full story, but here's the gist of it. Mr Rodney Hawkins, a welder and an aspiring musician with a severe shellfish allergy, went to dinner with his wife at a Ruby Tuesday's eatery in Lovejoy, Ga. Mr Hawkins, according to Mrs Hawkins, ordered the Chicken Fresco. The restaurant claims Mr Hawkins ordered the Chicken Oscar. Both dishes, according to Ruby Tuesday's menu, come served with mashed potatoes and steamed broccoli. Both chicken dishes are topped with a lemon-butter sauce. But Chicken Fresco comes with a tomato slice, while Chicken Oscar, as one might expect from the name, comes with asparagus and crab meat. Unfortunately for Mr Hawkins, he apparently did not notice the difference when the dish was served, and promptly went into shock, and died shortly thereafter.

The restaurant maintains Mr Hawkins ordered the Chicken Oscar, that the waitress verified this to Mr Hawkins, and that the order pad and kitchen ticket confirm their version of events. Mrs Hawkins disputes this version, and based on what I have read, I am inclined to agree with her story -- although I accept the restaurant may well be right.

As it happens, I have a relative who has a severe allergy to shrimp, and I can assure you that my relative makes a point of ensuring nothing she eats has any form of shrimp in it. She further makes a point of inquiring as to whether certain normally non-seafood dishes -- say an egg roll at a Chinese restaurant -- have shrimp in them; if they do, she declines. Since Ruby Tuesday's menu description of Chicken Oscar starts with the phrase "tender jumbo lump crab meat" to describe it, it seems rather unlikely Mr Hawkins would have voluntarily ordered this. It may be he made a mistake in doing so -- Chicken Fresco, Chicken Oscar, you're tired and what the hell's the difference anyway -- but if he informed the staff of his seafood allergy, they should have picked up on it.

Now, some commenters have suggested Mr Hawkins should have been more careful upon receiving his meal. To be sure, there is a duty of care on his part -- more on this in a bit. But my question is this -- both dishes are different, but how different do they really look when served up? Both are served with mashed potatoes and broccoli; both dishes are covered in lemon-butter sauce; could he have noticed? I mean, I've had the Chicken Fresco. It drowns in lemon-butter sauce.

Also, one person commenting on the AJC's Web site claims she actually saw this incident in person, and her story -- if true, mind you -- would lend credence to Mrs Hawkins' version of events.

To be sure, Mr Hawkins' severe allergy did present him with a duty of care -- if one has food allergies, one must take care not to ingest the stuff that makes one sick, even if it means avoiding going out to eat and picking around one's food to make sure none of the bad stuff is in it. One must also inform the staff of one's allergy.

That said, one does not expect to kick the bucket at Ruby Tuesday's, even if one orders the broccoli and cheese soup. So even if one argues Mr Hawkins was partially or mostly liable for his own death, it would seem at least some of the blame could still be cast upon the chain if Mr Hawkins informed the staff of his food allergy. That's important, I think: if a person simply says he does not want seafood, and the kitchen screws it up, well, it's a screw-up. If the person says I'm allergic to seafood, and it will kill me if I touch it, then the staff has to make damned sure there's no seafood.

All in all, though, I do think the chain erred in defending itself so forcefully -- there are ways to defend oneself that are consoling and appropriately saddened at the same time. Even if it is in the right, I think it could have handled this matter in a more polite way -- expressing its condolences, promising a full investigation of the matter, but most of all waiting until they're in court to make their case -- or at least making it as forcefully as they have.

Posted by Benjamin Kepple at July 8, 2008 11:30 PM | TrackBack
Comments

As far as I know, I'm not allergic to anything!
Well, except nature.
STUPID ALLERGIES.

Posted by: Matt at July 9, 2008 10:00 AM

As for some insightful legal analysis (because, well, I am after all a doctor of juris, ESQUIRE), the question is what is the appropriate standard of care for the restaurant. It is true that waitresses bring the wrong order all the time, so if that happened in this case, it wouldn't be too unusual from an industry standard. However, there is also something called the Eggshell Skull rule, which "holds an individual liable for all consequences resulting from his or her activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical condition)." http://en.wikipedia.org/wiki/Eggshell_skull ... This means that if I accidentally cut a hemophiliac and he dies from blood loss, I'd be responsible for involuntary manslaughter even if a normal person wouldn't have died. Same principle could apply here.

It's going to be an interesting case.

Posted by: Matt at July 9, 2008 10:05 AM

Matt, there is also something called "Common Sense."

http://en.wikipedia.org/wiki/Common_sense

As a chef -- as you are a lawyer -- we both will look at this incident very differently.

As a chef, I take a guest's allergies very seriously, especially shellfish and peanut. BUT, that guest has to let the server know. Something Mr. and Mrs. Hawkins failed to mention. Regardless of which dish he was served, he and his wife are directly responsible for what happened. To add to that I have served, eaten and seen well over a thousand "Oscar" dishes. I have never seen one where the crab meat was not VERY prevalent on the dish. Which leads me to my next point. The little lawyer inside me has me wondering..... was he depressed? How were his finances? Why did he not have a shot of Epinephrine with him if he was "severely" allergic as stated? Suicide? Probably not, but if I'm investigating this case it would cross my mind. To sum up my thoughts -- how could someone that allergic to something be that careless with his or her own life?

Please excuse my grammar; it's late and well, frankly my dear, I don't give a damn. (Editor's note: I do, so I fixed the punctuation and such. -- BJK)

I would be interested to hear any more thoughts you might have of this incident, as a lawyer; and as you stated, a very interesting case indeed. If not have a great weekend.

Posted by: Todd at July 10, 2008 06:20 AM

For the record, I'm sticking with my theory of partial liability.

I have seen nothing to suggest Mr Hawkins was suicidal or in financial distress, and neither has the Georgia Bureau of Investigation, as far as I know. As for not having a shot of epinephrine handy, whether he should have had one or not is immaterial. It is entirely likely the man simply relied on avoiding the foods that caused him distress. If you know you're allergic to something, but haven't had a reaction in years due to your avoidance of it, why have a pen -- aside from an overabundance of caution?

Posted by: Benjamin Kepple at July 10, 2008 09:06 AM
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