Comments: Restaurant: Man Ordered Dish That Killed Him

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

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)." ... 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."

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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