So here’s a quiz to see whether you have what it takes to be a trial lawyer: Man walks into a bar, has some drinks, rides over to a diner with his friend. At the diner, the man orders a sandwich, chokes on it, and dies. So the question is, who do you sue?
(A) You don’t. It’s nobody’s fault; it was just a tragic accident. If anybody is to blame, it’s the man who got drunk and then carelessly choked.
(B) The diner, for serving the sandwich.
(C) The friend, for driving the man to the diner.
(D) The bar, for serving him alcohol; if he hadn’t been drunk, he might not have choked.
If you answered (A), you’re new here, aren’t you? If you answered (B), (C), or (D), well, you’re getting warmer, but you’re not quite there. As every real trial lawyer knows, the answer is (E) The diner, the friend, and the bar.
In 1991, a man from upstate New York named Thomas Filiberto had some drinks at a bar Tavern, and then was driven over to a diner by his friend, who also happened to be the bartender. Filiberto ordered a hot roast beef sandwich, choked, and died, despite the attempt of other diner patrons to save him. His family sued everybody “involved” — and I use the term loosely. The bar, the bartender/friend, and the diner.
It only took until 1999 to settle the fact that restaurants do not in fact have a duty not to serve food to drunk people (that’s tens of thousands of dollars — there was an appeal in there — of legal fees because a diner served a guy a $5 sandwich). Last week, an appellate court finally reversed the trial judge’s decision that the bar and bartender were negligent and 50% responsible for the death (with Filiberto responsible for the other 50%), holding that the accident wasn’t foreseeable:
Even if Bracchi had agreed to take decedent home, decedent choking on an unchewed piece of roast beef was not a reasonably foreseeable risk of stopping for a bite to eat. “Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated.” Accepting decedent’s extreme level of intoxication and the difficulty that such an intoxicated person would have in chewing and swallowing roast beef, as testified to by plaintiff’s medical expert, there is absolutely no proof that such difficulties would be apparent to anyone other than perhaps a medical professional. Because it was unforeseeable that decedent was in danger of choking by consuming a meal, Bracchi had no duty to protect him from the risk of this remote possibility.
Don’t worry; the claim that the bar bears responsibility under New York’s Dram Shop Act (which makes establishments liable for serving alcohol to people who later get hurt) still has to be resolved.
To quote Yakov Smirnoff, “What a country.”
(New York Lawyer: Subscription only; Appellate Division Court decision)
6 Comments
David: Do you believe that defendants can predict accidents?
The lawyer does, since foreseeability is the core of duty. The lawyer believes in supernatural powers. Because foreseeability is the core of duty, all negligence tort claims violate the Establishment Clause.
I want the members of the Supreme Court to give me tonight’s Big Lotto numbers. Their chance of doing so correctly is the same as foreseeing an accident at the worst traffic intersection in the nation. Your heinous profession believes in the supernatural power of foretelling the future. It is out of control in its insurrection against the Establishment Clause.
This case brought to mind the lesson of forseeability taught in the first torts case most of us studied, Palsgraf v. L.I.R.R..
Supremacy, I let your comment through once so I could explain this to you: “foretell” and “foreseeable” are not the same thing. If an auto mechanic does a shoddy job fixing a car’s brakes, he can’t predict when or where they will fail, or who will be hurt — but he can foresee that they may fail at some point. And since people usually use brakes when they need to stop their cars, he can foresee that their failure will cause someone to get injured.
I don’t know who will win the lottery, but it’s foreseeable that it will be won by someone at some point.
Foreseeability has been expanded by the courts beyond reasonability, in my opinion — but that doesn’t mean foreseeability itself is a strange concept.
You’re talking about certainty. But if an accident were certain, it wouldn’t be negligence; it would be a crime. The fact that it’s uncertain is what limits it to negligence. (Yes, I’m oversimplifying the legal tests somewhat for clarity.)
So funny it hurts! The truth is not always jpainfur but sometimes is ugly.
Good thing the man didn’t drive to the diner– not only was he too drunk to chew his food properly, but his family’s lawyer would be compelled to sue the city for failing to stop him and protect him from sandwiches.
Also, the lawyer should’ve checked the sandwich for the presense of condiments such as mustard or mayo; as a sandwich expert, I’d be willing to testify (for a fee) that there’s no greater choking hazard than an inadequately lubricated baguette. Sue Hellmanns/Best Foods just in case.
Thanks to David Nieporent for his distinguishing “fortell” from “foreseeable”.
The bartender could foresee a trafic accident, so he drove home a drunk man. Asking the bartender to foresee a chocking incident is asking too much.
Those in the plaintif bar err when they base arguements on the notion that all risks are avoidable. Life and risk go together. We can, at best, manage our risks.