Peter Lattman reports that a jury took two hours to reject the claim that dodging a flying shrimp at a Benihana restaurant caused Jerry Colaitis’s death ten months later. Some opponents of liability reform might use this as evidence that the system works, but Benihana is still out the exorbitant cost of the attorney time required to prepare for and defend a four-week trial, which was certainly in the six digits, and perhaps the seven digits, effectively punishing them for not paying protection money. (Corey Kilgannon, “Jury to Decide if Flying Sizzling Shrimp Led to Man’s Death”, New York Times, Feb. 9). We were way in front of this story in the blogosphere, reporting on it Nov. 23, 2004 and Jan. 13.
Posts Tagged ‘restaurants’
Update: the flying shrimp of death
The trial in the $10 million wrongful-death lawsuit against Benihana over a hibachi chef’s tossed shrimp that allegedly killed a man ten months later has begun. (Hat-tip: H.G.) Newsday tells of plaintiffs’ attorney Andre Ferenzo depicting a chilling scene: “We’re talking about pieces of cooked food thrown directly at people who are eating dinner in the restaurant!” Ferenzo even understands the dramatic importance of the Rule of Three, as he describes two previous shrimp tosses before the particularly fatal one that he blames for Jerry Colaitis’s death. (Caolaitis actually died of sepsis ten months later, and five months after the neck surgery his family claims was caused by dodging shrimp.) (Ann Givens, “Benihana shrimp toss cited in death”, Jan. 11).
We first reported on the case Nov. 23, 2004.
House passes cheeseburger bill
As it did last year (see Mar. 11, 2004). This time the margin is wider, 306-120 instead of 276-139. The Senate, as usual, is the sticking point. (Libby Quaid, “House Votes to Ban Obesity Blame Lawsuits”, AP/MyWay.com, Oct. 20).
More: Jacob Sullum (Oct. 20) takes a dim view of the bill because of its expansive interpretation of the Commerce Clause, and also suggests that the bill contains a rather wide loophole:
[It] makes exceptions not only for violations of express warranties but for violations of state or federal law that result in excessive calorie consumption. The latter exception would apply to Pelman v. McDonald’s, the case in which two overweight teenagers seek to blame the chain for their chubbiness. The suit was dismissed twice by U.S. District Judge Robert Sweet for failure to adequately state a claim, but it was revived by the U.S. Court of Appeals for the 2nd Circuit, which ruled that the plaintiffs could pursue their argument that McDonald’s violated New York’s Consumer Protection Act through deceptive marketing practices.
The question of unisex bathrooms
Blogger Amber points to the tale of a transsexual survivor of Katrina being arrested for using the woman’s room and asks “Why not have unisex bathrooms?” One obvious reason is that, in commercial establishments at least, unisex restrooms present a stronger risk of alienating customers with a preference for the single-sex model than vice versa. Still, social mores have changed in some places, and the architecture hasn’t caught up.
Here, I suspect there are liability-related reasons. The first innovator to create a unisex bathroom and be unfortunate enough to be the scene of a sexual assault in the bathroom is going to be sued for not conforming to the standard practice. So there’s a collective action problem even to the extent that institutions wish to create unisex restrooms. (The uber-trendy bar and restaurant Mie N Yu in Georgetown has a unisex bathroom, but they have a full-time attendant.)
Update: chili finger couple plead guilty
Heavy metal chicken band ad
Burger King Corp. has asked a federal court in Miami “to declare that the use of a mock heavy metal band featuring performers wearing chicken masks does not violate any rights” of the heavy metal band Slipknot, whose lawyers had fired off a cease and desist letter to the burger operator and its ad agency over the ad in question. “The Coq Roq band is a mock heavy metal band that is markedly and obviously different from Slipknot except for the generic fact that both play heavy metal music and wear masks,” according to the fast-food chain’s filing. (“Burger King takes ad dispute to court”, Orlando Sentinel, Aug. 21; Charlie Amter, “Slipknot Seeks to Block BK’s Coq”, E!Online, Aug. 18)(with ghastly photos))
Detroy Marshall v. Burger King
From the Deep Pocket Files, sometimes I don’t have to add a thing:
Pamela Fritz accidentally backed her car into a lamppost while attempting to exit her parking space. Shifting forward and accelerating quickly to escape the lamppost menace, she lost control of her car and it went airborne, flying through the window and striking Marshall. It’s a whopper of a tale, but it’s all true. And Marshall’s estate sued the restaurant for wrongful death.
See, as the complaint alleges, defendants
“Improperly designed the Burger King restaurant building, by designing the building to be bricked up only a few feet from the ground, when the Defendant[s] knew or should have known, that permitting the building to be bricked up only a few feet from the ground may allow a vehicle from the parking lot to drive into the building, and crash through the glass on top of the brick.”
I’ll now quote from the Illinois appellate court decision:
Burger King and Davekiz filed a joint motion to dismiss, claiming they had no duty under the law to protect their patrons from the threat of runaway cars crashing into the restaurant. The trial court granted the motion and dismissed the allegations against Burger King and Davekiz with prejudice. The trial court reasoned:
“[T]he likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver, and the result would be to require foregoing any hope of aesthetically pleasing or business-enticing buildings. Obviously these two factors are less important that [sic] the safety of invitees, but the Court is required to do a balancing test and in doing so, I find that the duty stated by the plaintiffs is too high in this instance.”
Yet, amazingly, the appellate court reversed. Burger King has appealed to the Illinois Supreme Court. The always-looking-out-for-our-interests Illinois Trial Lawyers Association has filed a brief asking for affirmance. (Brian Mackey, “Car Smashing Store ‘Foreseeable’: Advocates”, Chicago Daily Law Bulletin, Aug. 2 ($) (via ICJL); Anthony Marshall, “Parking lots can create unexpected dangers if not inspected”, Hotel & Motel Management, Jun. 20). (The Anthony Marshall columns, which assume matter-of-factly that defendants will and should get sued for everything, have recommended that hotels ban water slides, chewing gum sales, bathtubs, and birthday candles. They’re valuable reading to explain why small businessmen hate lawyers.)
Bootleg chow
Gunner at No Quarters (Jul. 13) rounds up material on underground restaurants in the U.S. and Italy. One factor operating in their favor: the chance to set smoking policies that please the clientele as opposed to the authorities.
A thought on fast-food regulation
ABC’s John Stossel, writing in his weekly column (“Who’s really open?”, syndicated/TownHall, Jul. 13):
I did have had a wonderful time on Air America’s “Morning Sedition,” with a host who was furious that government doesn’t stop Americans from eating too many Big Macs. I treasure the moment of silence that followed my saying that government that’s big enough to tell you what to eat … is government big enough to tell you with whom you can have sex.
New post category: “Eat, Drink and Be Merry”
It’s been a while since we’ve added any new topical categories, so we’ve just created one that’s been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of “addictive” entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.
A word about our topical pages (which are a great way to use the site for research, or just browse what we’ve published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don’t fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you’re interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered’s front page, just below the list of archives arranged by month.