If deathly allergic to burger condiments, consider checking for their absence

by Walter Olson on May 10, 2009

This vital step in an allergy-mitigation protocol appears not to have been undertaken by Darius Dugger of Portsmouth, Va., who says he specifically asked that Burger King omit the onions, tomato and pickle from his sandwich, but that they ignored his request, resulting in the severe allergic reaction for which he’d like $100,000. [Norfolk Virginian-Pilot via Patrick at Popehat] He says he’d already taken a bite and swallowed by the time he realized their error, as opposed to, you know, peeking under the bun to see. Earlier on West Virginia McDonald’s “hold the cheese” suit here.

{ 6 comments }

1 silvermine 05.10.09 at 3:33 pm

Yea, I’m not even dealthy allergic to anything (just unpleasantly) and I trust but verify. :D

2 Doug 05.10.09 at 4:44 pm

Funny thing is, I just don’t like any of these things on my burger as a preference, yet, I always check my burger.

3 TerryN 05.10.09 at 7:22 pm

So how do you know you’re deathly allergic to something? I’m assuming you’d have to eat something and then die, to know that it would kill you.

4 VMS 05.10.09 at 7:23 pm

Once upon a time law students studied the case of Hadley v Baxendale which precludes the award of consequential damages for breach of contract unless the damages stem from the “usual course of things” from the breach of the contract itself; or for more remote damges to be awarded, the defendant had actual notice of the possibility of these consequences. THIS IS NOT A TORT (NEGLIGENCE) CASE.

The facts alleged cannot result in the award of damages (more than the cost of the burger) as a matter of law in every US jurisdiction. If Mr. Dugger had specifically told someone who had the authority to bind the corporation that he did not want onion pickle etc. because he had severe allergies to these ingredients and they served him those anyway, that would be a diffrent story.

There is no negligence here, merely a breach of contract at the most, and BK should be ordered to refund Mr. Dugger the price of his burger, plus the difference in cost of getting a similar burger at another burger joint that was prepared in accordance with the original contract.

5 happymom4 05.11.09 at 12:30 am

My son is seriously allergic to dairy AND wheat in all forms. I can’t tell you how many times we’ve clearly specified what he may NOT have when we place a food order–only to have to correct it. If we sued every time . . . we’d be so busy suing we’d never get any thing else done in life. We’ve never asked for ANY compensation at all–only a few times have we actually needed to give them the food back to pitch, and then re-make correctly for our son. I try to treat them the way I’d want to be treated.

6 laserman 05.11.09 at 6:34 am

I’m allergic to cheese, yet I look everytime I order a burger and think nothing of it. If they screw up and I get a cheeseburger, it’s not a big deal to me, just send it back and have it remade.

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