Week 6 Journal: Journal on Key Takeaways
Reflect upon what you consider to be the key takeaways from this week’s readings. As you reflect, you should consider the following questions:
Journal entries should be between 450 and 600 words, though longer entries are welcome. Students should take care in their general reflections, to touch upon the questions raised above and remember to provide citations/references when necessary.
WEEK 6 READINGS
ARTICLES:
This reading explores the three common theories of liability that arise when the service of food or drink causes harm. Claims resulting from such harm can be brought under either, or all, the law of negligence, warranty, or strict liability.
This article details the development of liability for the service of alcohol to the intoxicated or underage patron.
https://www.alllaw.com/articles/nolo/auto-accident…
This reading is a quick summary of dram shop liability.
Discussing the history of imposing liability for the service of alcohol, this article also provides information on the rules from the various states.
Week 6 Videos
Can a Bar be Sued for Selling Alcohol to a Drunk Driver (4:20)
This short video explains the circumstances under which a bar can be held liable for serving too much alcohol to a patron.
Jury Awarded 6.7 Million in Food Poisoning Case (1:45)
This is a news report discussing the liability of a restaurant to patrons who suffered severe food poisoning.
Liebeck v. McDonalds (4:39)
The story of a patron of McDonalds who suffered serious burns from an overly hot cup of coffee is explained in this video.
THE TRENDS IN DRAM SHOP LAWS AND HOW
THEY AFFECT THE HOSPITALITY INDUSTRY:
BALANCING COMPETING POLICY
CONSIDERATIONS OF TORT REFORM
AND CURBING DRUNK DRIVING
Jane N. Boyd
Florida State University
and
Frank A. Vickory
and
Patrick F. Maroney
Department of Risk Management/Insurance,
Real Estate and Business Law
Florida State University
ABSTRACT
This article outlines the history of and the current trends in dram shop legislation
throughout the United States. It will be seen that the term “dram shop” law can have
extremely divergent meanings from state to state. In part, this is because such laws
are designed to address competing and difficult-to-reconcile public policies. On the
one hand, there is the public interest in curbing the incidence and consequences of
drunk driving, which is an argument in favor of increasing the liability of alcohol
vendors and servers. On the other, there is the public interest in keeping insurance
available and its costs under control, which indicates a policy of reducing the liability
of those in the hospitality industry and thus decreasing their exposure (and, hence,
the exposure of their insurance carriers) to insured risks. The purpose of this article
is to explain these competing policies and to show how the states are currently
balancing them in enacting or amending their dram shop laws. Those in the
hospitality industry will then be better able to predict and, through informed
participation in the legislative process, influence the direction of this important area
of the law. Key Words: Dram shop laws, liquor liability, drunk driving, tort reform,
public policy.
INTRODUCTION
As insurance premiums continue to rise, creating what some would call an
insurance &dquo;crisis,&dquo; states are examining their insurance and tort systems to address
the perceived problems of insurance being unavailable or unaffordable or both. In
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ON HOTEL, RESTAURANT AND INSTITUTIONAL EDUCATION
@ 1991 THE COUNCIL
addressing these availability and affordability problems, one approach has been in
the direction of tort reform. Tort reforms are designed to lessen the severity and
frequency of insurance payouts and thus result in lower insurance premiums.
In considering restrictions on lawsuits, however, certain other important public
policy considerations must be examined. In the area of a professional’s legal liability,
for example, state laws vary concerning the ability of a party not in privity of contract
with the professional (that is, not a party to a contract with the professional) to sue
the professional successfully for damages arising out of the professional’s negligence. Many states, for instance, responding to the tragically high rate of alcoholrelated traffic fatalities, are increasing driver liability for drunk driving. Consistent with
the policy of protecting the public from drunk drivers, many states have expanded not
only driver liability, but also server liability as well. Doing so, however, is at odds with
the goals of tort reforms designed to keep insurance availability and costs under
control. In resolving the competing public interests involved, the states are far from
uniform in their responses. Dram shop laws (those relating to liability of servers of
alcohol) may expand liability, or they may limit it. Dram shop laws that limit liability
are designed to reduce the frequency and severity of payouts and, consequently,
insurance costs. Those which expand liability do so with the goal of reducing the
incidence of drunk driving.
The purpose of this article is to consider the development of dram shop
legislation in the United States, to examine the competing policy interests involved,
and to detail the current state of such legislation throughout the country. It is hoped
that those involved in the industry can then better assess their liability exposure, can
better predict the trends in this important area of hospitality law, and will be in a
position, through participating in the legislative process, to influence the development of the law on this crucial issue.
Dram Shop Laws: An Overview
Early U.S. law provided that a seller of alcohol was not liable to persons injured
by an intoxicated customer. This was because the &dquo;proximate&dquo; (or direct) cause of
any damages to a third party was seen as the voluntary consumption of alcohol rather
than the furnishing of alcohol (El Chico Corp. v. Poole, 1987). Gradually, the courts
in some jurisdictions and the legislature in others have expanded the liability of
servers of alcohol. Consequently, servers have become responsible, at least to
some extent, for the consequences of their serving the alcohol. As the problem of
drunk driving has increased, and as the public has become less tolerant of it, the
pressure has become more intense to stiffen penalties and to hold servers as well
as drivers more accountable.
The economic and other costs of drunk driving are indeed staggering. The U.S.
Department of Transportation reports that eliminating 10% of alcohol-impaired
operators from the nation’s highways would prevent 53,000 injuries, save 2,400
lives, and save $1 billion in costs to society annually (Insurance Information Institute,
1990, p. 99). That alcohol impairs an individual’s ability to operate a vehicle is beyond
dispute. The National Academy of Science has concluded that &dquo;performance on
driving related tasks decreases at any [italics added] BAC (blood alcohol concen-
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tration) above zero and crash risk increases sharply as BAC rises&dquo; (O’Neal, 1988,
p. 100).
Focusing on drivers, one method of combating the problem of driving while
impaired has been to lower the blood alcohol concentration threshold. The BAC is
established legislatively and defines impairment. For instance, a 0.08 threshold is
utilized in California, Maine, Oregon, Utah, and Vermont. Additionally, Maine has a
blood alcohol concentration threshold of 0.02 fordrivers underthe age of 21 (O’Neal,
1988, p. 100).
A second method of addressing the issue of drunk driving is the use of automatic
suspension or revocation of licenses. Minnesota was the first state to adopt such socalled &dquo;administrative&dquo; suspension of operators’ licenses. In Minnesota, if the
driver’s blood alcohol concentration exceeds .10%, the arresting officer is empowered to immediately seize the operator’s driver’s license and issue a temporary
permit. The driver is allowed to request a hearing to contest the results of the blood
alcohol concentration test. If the driver is not successful at the hearing, or if he or she
does not request a hearing, a 90-day license suspension is administratively, rather
than judicially, imposed. The rationale behind an administrative suspension procedure is to provide a swift, effective penalty that applies uniformly to all drivers (The
Recommendations of the Governor’s Commission on Drinking and Driving, 1982).
The Insurance Institute for Highway Safety has studied the effect of administrative
suspension laws and found them to be effective in lowering the rate of drunk driving
(O’Neal, 1988, p. 2). States utilizing administrative suspension or revocation include
Alaska, Arizona, Colorado, Delaware, Illinois, Iowa, Kansas, Louisiana, Maine,
Minnesota, Missouri, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Utah, Vermont, Wyoming, West Virginia, and Wisconsin (O’Neal,
1988, p. 101 ).
Concurrent with the trend toward dealing more severely with drunk drivers,
many states have enacted dram shop acts to hold servers of alcohol responsible for
the injuries of third parties caused by intoxicated buyers of alcohol. Liability may
result from injuries caused by the drinker’s intentional acts such as assault and
battery, as well as injuries caused by the negligent operation of a vehicle. Some dram
shop acts hold the seller liable for the loss of family support resulting from injuries,
even those to the intoxicated buyer himself.
Historical Background: The Common Law
Under early common law (the law as developed by courts themselves to deal
with the cases coming before them), it was not illegal to sell or serve alcohol to an
&dquo;able-bodied man&dquo; (Seibel v. Leach, etal.,1939, p. 775). The consumer of the alcohol
was held solely liable for his negligent and tortious acts, because the mere serving
of alcohol was considered &dquo;too remote to be a proximate cause of an injury caused
by the negligent act of the purchaser of the drink&dquo; (Seibel v. Leach, et al., 1939, p.
775). The courts reasoned that the consumption of the alcohol, rather than its
service, was the &dquo;proximate cause&dquo; of any injury to the buyer or to third parties as a
&dquo;Proximate
result of the actions of the intoxicated buyer (Erickson & Hamilton,1983).
cause,&dquo; or a direct link between a defendant’s act and a plaintiff’s injury, is a required
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27
element of a common law tort action.
In State for Use of Joyce v. Hatfield (1951 ), the common law rule was stated to
be based on the reasoning that a person should not be able to avoid liability for his
acts by becoming intoxicated. Moreover, the serving of alcohol to an &dquo;able-bodied
man&dquo; should not be a tort, because selling alcohol is a legitimate business and the
buyer is presumed to be responsible (Meade v. Freeman, 1969). In fact, the server,
under the common law, had no duty to prevent the intoxicated buyer from leaving the
premises, or to otherwise prevent injuries at places or under circumstances &dquo;wholly
outside the seller’s knowledge or consent&dquo; (Nolan v. Morelli, 1967, p. 384).
The courts steadfastly refused even to review cases against servers on an
individual basis to determine whether the server in a particular case should have
foreseen the resulting injury given the unique facts of the case. This rule actually
changed the common law negligence principle regarding &dquo;proximate cause,&dquo; because it eliminated the issue of reasonable foreseeability of the risk of harm from the
court’s inquiry: &dquo;because a provider of drink can never [italics added] be the
proximate cause of an injury, he effectively has no duty whatsoever to either the
intoxicated person orthe public at large&dquo; (Mishky,1984, p.182). Thus, a server could
not even be held liable in cases where he should have been able to foresee the risk
of harm. This was an aberration of the common law.
Historical Background: Early Dram Shop Legislation
Times change, however, and public drunkenness became a major concern
during the 1800s, as social mores changed. Consequently, a &dquo;temperance movement&dquo; (that is, widespread public disapproval of alcohol consumption) evolved, as
attitudes shifted toward emphasis on the importance of &dquo;virtue.&dquo; In response to the
19th-century growth of the temperance movement, the first dram shop acts were
passed to mitigate the harshness of the common law rule prohibiting recovery from
sellers of alcohol. Wisconsin enacted the first dram shop act in 1849. Indiana, Ohio,
New York, and Maine passed similar statutes in the 1850s. During the post-civil war
era, dram shop acts were enacted nationwide (Ogilvie, 1958).
While early dram shop acts generally imposed strict liability on servers for
injuries caused by the illegal sale of alcohol to minors, habitual drunkards and those
obviously intoxicated, the acts were ineffective because they were extremely limited
in scope, sporadically enforced, and rarely applied by the courts. Ultimately, by the
end of prohibition in 1933, a number of states repealed their dram shop acts (Elder
v. Fisher, 1966; Barboza v. Decas, 1942; Ramsey v. Anctie, 1965). Even those laws
that were not repealed were rarely enforced (Bracke, 1988). Thus, the common law
principles retained their vitality.
Historical Background: Modern Dram Shop Liability
The 1950s, however, saw a growing awareness of the deadly combination
presented by drinking and driving. The courts slowly began to recognize that the time
had come to reexamine the traditional common law view that a commercial supplier
of liquor could not be held liable for injuries caused by an intoxicated patron who had
been served alcohol by the vendor. Often cited as the first case recognizing a
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doctrine of liability of tavern keepers under the common law of negligence is
Rappaport v. Nichols (1959), a decision of the New Jersey Supreme Court .
As previously noted, many states repealed their original dram shop acts at the
end of prohibition. New Jersey repealed its dram shop act in 1934. Thus, in 1959,
since there was no statute in New Jersey imposing liability upon unlawful sellers of
alcohol, the common law applied. In Rappaport, it was alleged that Robert Nichols,
a minor, had been negligently and unlawfully served intoxicating liquors by one of the
defendants, a vendor of alcohol. While intoxicated, Nichols allegedly collided with
the plaintiff’s automobile, resulting in a death. The sellers of the alcohol prevailed
in the trial court on the grounds that the common law’s traditional rule protected them
from liability. Ultimately, the Supreme Court of New Jersey reversed and sent the
case back for a trial on the factual issue of proximate cause between the defendant’s
negligence and the injuries sustained by the plaintiff. The state’s Supreme Court
specifically found that a direct relationship may exist between the unlawful sale of
alcoholic beverages by a tavern keeper and the injury to third parties caused by an
intoxicated patron. Significantly, the court further held that if the circumstances in a
given case are such that the tavern keeper knows or should know that the person
being served is a minor or is intoxicated, that service may constitute common law
negligence.
The court in Rappaportdefined the vendor’s negligence in terms of the &dquo;creation
of a situation which involves unreasonable risk because of the expectable action of
another.&dquo; Hence, the vendor has a duty to refuse to serve a patron if &dquo;the reasonably
prudent person at the time and place should recognize and foresee an unreasonable
risk or likelihood of harm or danger to others&dquo; as a result of serving the alcohol to the
customer. Other courts later held more specifically that if a customer is visibly
intoxicated at the time the drinks are served, and if it is reasonably foreseeable that
when the customer leaves the tavern he or she will drive an automobile, then the
tavern keeper has breached his or her common law duty of care (Cimino v. Milford
Keg Inc., 1982).
It should be noted that in Rappaport, the court held that the tavern keeper could
be liable not only under common law negligence, but also as a result of his violation
of the Alcoholic Beverage Control (ABC) Act that was in force in New Jersey at the
time. Thus, the court held that the vendor’s violation of the state criminal provision
regulating the sale of alcohol was itself evidence of negligence and could lead to civil
liability. This means that by violating the state’s criminal law regulating the sale of
alcohol, the seller could also be found, as a result of the criminal violation, to be liable
to the injured parties.
Another landmark decision reached in 1959 held similarly. In Waynick v.
Chicago’s Last Department Store (1959), the court allowed a cause of action based
on an illegal sale in violation of the Illinois ABC Act. This was an action seeking
damages for injuries sustained by plaintiffs when the automobile in which they were
riding collided in Michigan with the automobile driven by an intoxicated defendant
who had been served alcohol by a vendor in Illinois while visibly intoxicated. The
court recognized that in Illinois, the dram shop act in effect at the time was the
exclusive available remedy, but further stated that, since the accident occurred
outside Illinois, the case could be decided on common law principles. The court held
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29
that under such common law principles, the defendant vendors were liable, since the
plaintiff’s injuries resulted from the serving of alcohol in violation of Illinois’ ABC Act.
Rappaport and Waynick broke new ground in 1959, because prior to that time
courts followed the view that a vendor could only be held liable for damages caused
by a customer’s drunk driving if the state had a dram shop act. In these cases,
however, the respective courts held that violation of a state’s alcohol beverage
control statute constituted negligence, or at least evidence of negligence, which
could result not only in criminal penalties against the violator, but also in civil liability
to injured individuals on the part of the violator.
In those cases where violation of a criminal statute is itself deemed, even without
further evidence of the defendant’s conduct, to constitute negligence, the violation
is said to be negligence per se. In order for this doctrine to apply, the plaintiff in a civil
action seeking recovery for damages must show that he or she is a member of the
class of persons sought to be protected by the statute, and that the harm suffered
is the kind that the statute was intended to prevent. Thus, in Rappaport, for example,
the court determined that the ABC Act, which prohibited the serving of minors and
intoxicated persons (and which is typical of such acts), was intended not only to
protect the minors or intoxicated persons themselves, but also members of the
general public who could be harmed by accidents caused by drunk driving.
All 50 states and the District of Columbia have alcohol beverage control acts
such as the ones involved in Rappaport and Waynick, and most of them now hold
that a vendor’s violation of such an act constitutes either negligence per se or at least
provides evidence of negligence. This is a crucial distinction. If violation of the
statute is merely evidence of negligence, then the vendor can overcome the
negligence claim by showing that he or she did not know or have reason to believe
that the person served was a minor or intoxicated when served and, hence, that he
or she acted as a reasonably prudent person would have acted at the time and in the
same circumstances. On the other hand, if the negligence per se doctrine is used,
then violation of the statute constitutes the negligence.
Of course, a determination that a vendor who violated a liquor control statute
negligent does not in and of itself make the vendor liable. A jury must then
determine whether the negligent act of violating the statute by serving the alcohol
was the proximate cause of the injuries that resulted from the patron’s drunk driving.
As noted, courts have historically taken the position that there is a break in causation
between the serving of the alcohol and injuries caused by a patron’s drunk driving.
Courts have traditionally held that the proximate cause of the injuries is the
was
consuming of the alcohol by the intoxicated individual. In Rappaport, the court stated
that a person ought to be held liable for injuries if his or her negligence was a
&dquo;substantial factor&dquo; in causing the injuries and if the injuries followed in the foreseeable and ordinary course of events triggered by the negligence. Thus, the court
concluded that the act of selling the alcohol could be the proximate cause of the
injury, if the vendor sold the alcohol in violation of the state statute and the sale
resulted in the intoxication which caused the negligent driving. The court further held
that a jury could reasonably conclude that negligent driving on the part of a minor or
visibly intoxicated person is a foreseeable or &dquo;normal incident of the risk&dquo; created by
the servers of the alcohol and not a superseding cause that would prevent the vendor
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from being held liable for the plaintiff’s injuries. The Rappaportanalysis of proximate
cause is typical in such cases.
Several important considerations should be noted with regard to the expansion
of negligence principles that apply to servers. First, basing liability on violation of ABC
laws can rarely be used to hold a noncommercial server liable, because the liquor
control acts generally apply only to commercial vendors. Hence, there may be no
criminal statute for a noncommercial server to violate and to give rise to negligence
per se or to serve as evidence of negligence. Moreover, there are some important
contrasts among the states with regard to such liability. For instance, the states differ
on the class of persons to whom it is illegal to sell or serve alcohol. Most typical is
a statute which prohibits sale to minors or visibly intoxicated individuals. Some
jurisdictions, however, prohibit sale or service to only one of those classes, while
others include or substitute a person who is an habitual alcoholic or someone who
has been black-listed by the state as someone to whom liquor is not to be served.
Finally, there are distinctions between whether a court allows &dquo;first party&dquo; liability
party&dquo; liability or limits liability only to third parties. For instance, many
jurisdictions find that it is inappropriate to allow the intoxicated person himself (that
is, the first party) to recover, given the voluntary nature of indulgence in alcohol. In
effect, most jurisdictions allow the seller or server of alcohol to raise the defense of
&dquo;contributory&dquo; or &dquo;comparative&dquo; negligence in a suit brought by or on behalf of a minor
or visibly intoxicated person or habitual alcoholic who was served the alcohol. This
means the person’s act of drinking contributed to his own injuries. On the other hand,
as well as &dquo;third
there are exceptions to this rule. For instance, if it can be shown that the purpose
of a statute is at least in part to protect a minor against the risk of his or her own
negligence, then the general rule is that the minor’s recovery is not prevented, since
harm to the minor is precisely the risk that the statute is designed to prevent.
In sum, it can be seen that the public’s concern overthe problem of drunk driving
has translated into the imposition of greater responsibility and, hence, liability on the
servers of alcohol. There are, however, other societal problems whose solutions
may compete with those directed to the drunk-driving problem.
Tort Reform
The perception that insurance is too frequently unavailable and unaffordable is
widespread. This perception fuels the call for reforming our civil justice system.
Reform of the civil justice system has often been tied to reform of the insurance
industry. The initiatives to reform both the civil justice system and insurance system
seem to emanate from the perception that insurers charge too much and that the civil
justice system has expanded to allow recoveries in cases where they are not
warranted and which are excessive.
For example, voters in California approved Proposition 103 in November 1988.
One provision required most property and casualty insurance rates to be rolled back
to 20% below the rates in effect on November 8, 1987 unless the insurer could
demonstrate that it was substantially threatened with insolvency. The California
Supreme Court found this provision to be in violation of the constitutional requirements of due process. Nevada’s legislature has also mandated a 15% rollback in
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31
private and commercial automobile liability insurance premiums. South Carolina’s
legislature passed a 5% rollback, and Pennsylvania adopted a new no-fault plan that
mandates rollbacks up to in excess of 20% (O’Neal, 1988, p. 7).
At the same time, however, there have been increased pressures to limit liability
in general to solve the problems of the unaffordability and unavailability of insurance.
The insurance industry’s agenda for changes in the civil justice system focuses on
a number of areas such as abolition of joint and several liability, modification of the
collateral source rule, and limitations on punitive damages (O’Neal, 1988, p. 54).
Under the doctrine of joint and several liability, if two or more defendants are
found to be jointly responsible for causing the plaintiff’s damages, the plaintiff can
collect the full amount of damages from any one defendant. If the doctrine were done
away with, then the defendant would only be liable for his proportionate share of the
damages. Abolishing the doctrine completely would mean that a totally innocent
victim who is injured by several wrongdoers would only be able to collect from those
who are insured or financially able to respond. Thus, the loss resulting from one or
more defendant’s inability to pay would be borne by the injured party rather than by
the other defendants. Other alternatives are to limit the application of the doctrine
to certain situations-those, for example, that involve dollar amounts in excess of
$25,000―or perhaps to apply the doctrine only to economic (i.e., lost wages,
medical expenses) as opposed to noneconomic damages (i.e., pain and suffering).
Reforms in the area of modification of the collateral source rule entail telling the
jury of collateral sources (i.e., health and disability income insurance and workers
compensation) from which the plaintiff has recovered and either having the judge
deduct these payments or instructing the jury to deduct these payments from their
awards. Intuitively, this would seem to result in lower jury verdicts, since it would
appear that juries aware that the plaintiff has received reimbursement for out-ofpocket expenses would be inclined to return lower verdicts. However, some
research in this area seems to indicate that juries do not necessarily reduce the
amount of the award, and thus the preferable approach might be for the judge to
reduce the award (Maroney, Nelson, & Perrewe, 1990).
The limitation on the amount awarded as punitive damages refers to limiting
those damages which are awarded when the defendant’s conduct is intentional or
reckless. Punitive damages are different from damages generally awarded in civil
cases, in that their intent is to punish the defendant. The allowance of punitive
damages has been challenged on the ground that the Eighth Amendment to the U.S.
Constitution, which bans excessive fines, should be applicable to punitive-damage
awards in private lawsuits (O’Neal,1988, p. 55). The U.S. Supreme Court in its ruling
indicated that the Eighth Amendment did not apply to private lawsuits, but rather was
applicable to the government. Thus, punitive damages were not found to be
unconstitutional under the Eighth Amendment.
Balancing Competing Policies
Addressing dram shop liability in the context of tort reform would logically lead
to a limiting of liability of servers of alcoholic beverages in order to reduce payouts.
However, limiting server liability, although consistent with tort reform, conflicts with
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the competing public policy considerations evidenced by the trend to impose greater
liability in the case of drunk drivers. It is not surprising, therefore, that dram shop acts
are of two types. Dram shop acts may expand liability, or they may limit liability.
Currently, 41 states and the District of Columbia recognize some form of dram
shop liability based on either statutes or on common law principles. Alabama,
Alaska, Arizona, California, Connecticut, Florida, Georgia, Idaho, lowa, Kentucky,
Massachusetts, Mississippi, Montana, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Wisconsin,
and Wyoming recognize both statutory and common law cases regarding the
enforcement of dram shop liability against third parties. While the laws are fairly
uniform in extending dram shop liability against servers of alcohol who serve minors
or intoxicated persons, they vary in terms of application, notification requirements,
limitations on injured parties who may file suit, monetary damage restrictions,
bonding requirements, statutes of limitation, and social host liability. The laws of
these states are presented below.
Alabama law allows the parent or guardian of a minor, but not the minor, to
recover for damages resulting from the service of alcohol to a minor, but the server
may defend on the basis that he or she had no knowledge or reason to suspect that
the patron was a minor (Ala. Code Sec. 6-5-70; 1989). The law also provides that
if alcohol is served in violation of public policy or illegally, the surviving spouse or
children will have a cause of action against the server (Ala. Code Sec. 6-5-71; 1989).
Further, an injured third party may bring a negligence action under common law
against the server, and the plaintiff injured as a result of the illegal sale of alcohol to
another is not held to the usual standards of proof that must be met to establish a
causal connection between the sale of the alcohol and the injury (Ward v. Rhodes,
Hammond & Beck, Inc., 1987; Naples v. Chinese Palace, Inc., 1980; Phillips v.
Derrick, 1951).
Bar owners in Alaska may be held liable to third parties for service of alcohol to
underage patrons and drunk persons (Alaska Stat. Sec. 04.16.051, 04.21.020;
1989). Under common law, the bar owner has a duty to conduct him- or herself with
reasonable care and prudence while serving alcohol, and may be liable for the
negligence of a driver involved in a collision after consuming alcoholic beverages in
the tavern owner’s establishment; the plaintiff only has to prove that the injuries were
caused by an intoxicated person served at that establishment (Kavorkian v.
Tommy’s Elbow Room, 1985). Alaska law even makes it illegal for the tavern owner
to allow a drunk person to remain in the tavern (Alaska Stat. Sec. 04.16.030; 1989).
Arizona law holds licensed servers responsible for damages and injuries if the
plaintiff can establish either that the licensee sold alcohol to an obviously intoxicated
person or to a minor without requesting identification of proof of age,that the alcohol
sold by the licensee was consumed by the buyer on the premises of the licensee and
that the alcohol was determined by a jury to be the proximate cause of the injury,
death, or property damage (Ariz. Rev. Stat. Ann. Sec.4-311; 1989). Liability may also
apply if a jury finds that a tavern owner served a minor or person who was obviously
intoxicated and that the alcohol was a contributing part of the injury. Common law
liability arises from the negligent service of alcohol; the mere service of alcohol
constitutes negligence per se if the server knew the patron was intoxicated or a
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33
minor. There is no social host liability, and licensed servers cannot be held liable to
the actual consumer unless the consumer is a minor.
In California, injured third parties may recover for injuries resulting from the
illegal sale of alcohol to habitual drunkards and minors (Cal. Bus. & Prof. Code Sec.
25602, 25602.1; West, 1989) By law, each person is held responsible for the
consequences of his or her own willful acts and for injuries to others resulting from
the lack of ordinary care in the management of his or her personal property (Cal. Civ.
Code Sec. 1714; 1989). This provision may be extended to the service of alcohol.
Under common law, while social hosts are specifically precluded from liability to
consumers, the social host may have a duty to serve alcohol in a responsible
manner.
In Connecticut, anyone selling alcoholic beverages to an intoxicated person is
considered a cause of the intoxication and of resulting injuries. By law, the seller’s
liability is limited to $20,000 forthe injured individual and up to a total of $50,000 total
liability for any single violation of the illegal sale, and the injured party must serve
written notice of the injury to the server within 60 days (Conn. Gen. Stat. Sec. 30-102;
1989). Although actions based on common law negligence are preempted by the
statute, actions may be brought for wrongful service of alcohol, provided that the
plaintiff proves wanton and reckless misconduct.
Florida’s very restrictive law allows for liability for injury or damages resulting
from intoxication only if a server sells or furnishes alcohol to a habitual drunkard or
a minor. Written notice must first be given to the establishment serving the alcohol
which informed the server of the intoxicated person’s addiction to alcohol (Fla. Stat.
Ann. Sec. 768.128; West, 1989).
,
Even though Georgia law states the consumption, rather than the sale or
furnishing of the alcohol is considered the proximate cause of injury, death or
property damage, the statute provides exceptions to the proximate-cause rule in
cases where persons furnish alcohol to a minor or to a noticeably intoxicated person
knowing that person will soon be operating a motor vehicle (Ga. Code Ann. Sec. 511-40 ; 1989). The plaintiff is not required to show a causal link between the sale of
the alcohol and the resulting injury (Reeves v. Bridges, 1981 ). The server of alcohol
cannot be sued under the theory of negligence or negligence per se, but social host
liability applies under common law (Sutter v. Hutchings, 1985).
In Idaho, it is illegal to serve alcohol to a minor, an obviously intoxicated person
or a patron the server should have known was intoxicated; therefore, by law, the
server is required to monitor the quantity of drinks consumed by a patron. The victim
must notify the server of the cause of action within 180 days from the date of injury
(Idaho Code Sec. 23-808; 1989). Under common law, there does not appear to be
a negligence or negligence per se standard.
Iowa law provides that a person injured as a result of an intoxicated person’s
action is entitled to recover damages either from the intoxicated person or from the
seller of the alcohol. To sell, dispense, or give alcohol to an intoxicated person or
to one simulating intoxication is a violation of the liquor law. The plaintiff must give
written notice of intent to sue within six months of the injury. By statute, licensed
servers must have proof of financial responsibility, either by submitting a liability
34
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insurance policy or by posting a bond to the Liquor Control Board enabling anyone
seeking recovery the right to draw from these insurance policies or bonds held by the
State (lowa Code Ann. Sec.123.49(1 );1989). The statutes apply to social hosts who
serve obviously intoxicated guests. Victims may be entitled to actual and punitive
damages for suits brought for the negligent service of alcohol.
Massachusetts provides for recovery from licensed servers as well as social
hosts as a result of the negligent service of alcohol to an intoxicated person (Mass.
Gen. Laws Ann. Ch. 231, Sec. 85T; West, 1989). Suits may also be brought under
the theory of common law negligence.
The law of Mississippi provides for recovery from servers who provide alcohol
to visibly intoxicated persons, but limits recovery from social hosts and in cases
where the alcohol was lawfully furnished to a patron. The statute establishes the
cause of injury as the intoxicated person and not the alcohol or the server (Miss. Code
Ann. Sec. 67-3-73; 1989). Most common law cases concern service to minors.
Montana law provides for liability in cases where the consumer is visibly
intoxicated, where a person is forced to consume alcohol, is provided drinks the
consumer did not know contained alcohol, and where alcohol was sold to a minor
(Mont. Code Ann. Sec. 27-1-710; 1989). Common law liability for dram shop cases
is allowed under a claim of negligence.
The law of New Hampshire allows for any person injured as a result of a third
party’s negligent action to bring suit for damages. Among actions statutorily deemed
negligent are the service of alcohol to minors and the reckless service to any
intoxicated person. The server may introduce evidence of responsible business
practices to prove he was not negligent or reckless (N. H. Rev. Stat. Ann. Sec. 507F:1-8; 1989).
New Jersey law provides for liability against a server of alcohol that serves to
a visibly intoxicated person or to a minor. The plaintiff must prove the service of the
alcohol was a proximate cause of the injury, and that the injury was a foreseeable
consequence of the negligent service of the alcohol (N. J. Stat. Ann. Sec. 2A :22A1-7 ; West, 1989). Common law allows dram shop recovery from non-commercial
servers.
New York laws provide for liability against commercial sellers of alcohol for the
service of alcohol to persons under the age of 21 or to intoxicated persons (N. Y. Gen.
Oblig. Law Sec. 11-100, 11-101; McKinney, 1989). Both actual and punitive
damages are allowed for injury caused by third parties. Common law cases may be
brought under a theory of negligence.
Dram shop statutes in North Carolina deal solely with the service of alcohol to
minors. A third party may recover damages for violation of this statute, and damages
are limited to $500,000 per occurrence (N. C. Gen. Stat. 18B-120-129; 1989). Still,
negligence actions may be brought under common law against both social hosts and
commercial servers.
Ohio statutes make it illegal to sell alcohol to minors or intoxicated persons. Both
actual and punitive damages are available to the plaintiff. Severe penalties allow the
successful plaintiff to force the sale of a building that the server occupies, even if the
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35
only leasing the building, when it can be shown that the owner knew, or
should have known, that the server was serving in violation of the statute (Ohio Rev.
Code Ann. Sec. 4399.01, 4399.18; 1989). Common law dram shop is limited to the
case of a social host serving a minor guest.
server is
Oregon law provides that server liability applies to injured third parties where it
provided alcohol to visibly intoxicated patrons or
minors (Or. Rev. Stat. Sec. 30.950, 30.960; 1989). The plaintiff must prove through
clear and convincing evidence that the server provided alcohol to a visibly intoxicated
can be established that the server
patron. Social hosts are liable under the statute. Common law cases concern the
furnishing of alcohol to minors, and there are no reported cases of general dram shop
liability.
Pennsylvania statutes provide for civil liability for the commercial service of
alcohol to visibly intoxicated persons, but does not impose liability on social hosts or
in the case of service to minors. Both actual and punitive damages are available to
the successful plaintiff (Pa. Stat. Ann. Tit. 47, Sec. 4-497; 1989). Common law dram
shop liability applies to social hosts serving minors, but the courts have indicated the
old common law rule that the service to able-bodied adults was not the proximate
cause of the injury, thus placing the state of dram shop law in the state in question.
Tennessee law provides for dram shop liability for the service of alcohol to
obviously intoxicated persons and persons under the age of 21. The plaintiff must
prove beyond a reasonable doubt that the service of the alcohol was a proximate
cause of the injury (Tenn. Code Ann. Sec. 57-10-101;1989). Common law principles
are essentially the same as the statutory principles.
Texas law provides for liability where a server provides alcohol to a minor or to
a patron who is obviously intoxicated and a &dquo;clear danger&dquo; to himself and others. The
plaintiff must prove beyond a reasonable doubt that the service of the alcohol was
the proximate cause of the injury (Tex. Alco. Bev. Code Ann. Sec. 2.01-2.03; Vernon,
1989).
Utah statutes provide for liability against any server of alcohol who provides
alcohol to anyone under 21 or to any person who is apparently under the influence
of drugs or alcohol, or who the server should have known was under the influence
of drugs or alcohol. The plaintiff must prove that the injury was caused by the alcohol
provided by the server. Damages are limited to $100,000 per plaintiff or $300,000
per occurrence (Utah Code Ann. Sec. 32A-14-1; 1989).
Wisconsin law limits dram shop liability to the service of minors (Wis. Stat. Sec.
125.035; 1989).
Wyoming law allows for recovery for family members for service to minors, or
for the actions of a habitual drunkard when written notice is given to a server (Wyo.
Stat. Sec. 12-5-502; 1989). Case law provides for negligence actions in cases
involving minors or social hosts.
Eleven states have dram shop liability statutes, but have no common law liability
against commercial drinking establishments. These states include Colorado,
Illinois, Indiana, Maine, Michigan, Minnesota, Missouri, New Mexico, North Dakota,
Rhode Island, and Vermont. The statutes in effect in these states are presented
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below.
Colorado’s dram shop law is one of the most limited in the United States.
Following the habitual drunkard standard applicable in a few states, the law provides
that only after a server is notified in writing that a person is a habitual drunkard, is the
server liable for the actions of that habitual drunkard if he is served alcohol. By law,
any common law liability relating to the commercial service of alcohol is abolished.
The law also states that the proximate cause of injuries or damages inflicted on a third
person by an intoxicated person is the consumption rather than the sale or service
of alcohol by the bar owner. Server liability is restricted to cases in which it can be
proven that the bar owner willfully and knowingly sold alcohol to a visibly intoxicated
person or to a person under 21 years of age. Suit must be brought within one year
after the sale or service alleged to have caused the injury. Causes of actions by the
person who consumed the alcohol are limited, and damages are limited to a
maximum of $150,000 (Colo. Rev. Stat. Sec. 12-47-128.5, 13-21-103; 1989).
Illinois statutes require the plaintiff to prove before a jury that the service of
alcohol was a proximate cause of their injury. He or she must prove the bar owner
knew, or should have known, that the service of alcohol was going to result in injury.
Damages are limited to $30,000 for each injury and $40,000 for loss of wages or
support. No social host liability nor dram shop related negligence is available (111.
Rev. Stat. Ch. 43, Sec. 135; 1989).
Indiana law makes the server of the alcohol liable for all damages resulting from
the service of alcohol to persons who are visibly intoxicated. The plaintiff must prove
the alcohol was a proximate cause of the injury (Ind. Code Sec. 7.1 -5-10-15.5; 1989).
Maine provides third party liability when alcohol is served negligently or
recklessly to an individual, specifically to a minor or to anyone visibly intoxicated (Me.
Rev. Stat. Ann. Tit. 28-A, Sec. 2501-2516; 1989).
Michigan statutes provide for liability in cases where a server has provided
alcohol to a minor or to a visibly intoxicated person. The server must be notified in
writing within 120 days of the retention of an attorney, and the lawsuit must begin
within two years of the injury (Mich. Comp. Laws Sec. 436.22(1 ), (3)-(11 ); 1989).
Minnesota law allows an interested party to bring a cause of action against a
causing the intoxication that resulted in injury. Claims must be for
of
damages a minimum of $30,000, and the plaintiff must provide written notice to
the server within 120 days of retaining an attorney (Minn. Stat. Ann. Sec. 340A.801 340A.802 ; West, 1989). Common law limits recovery to cases concerning social
host liability.
server for
Missouri has repealed the 1934 dram shop statute. Dram shop liability now is
limited to the service of minors and arises only when the server is criminally convicted
of the service to a minor (Mo. Rev. Stat. Sec. 537.053; 1989).
The laws of New Mexico provide for liability against both commercial servers
and social hosts where service is to an intoxicated person or to a minor. The statute
limits the liability of third parties to $20,000 in property damage, $50,000 in bodily
injury, and up to $100,000 for death (N.M. Stat. Ann. Sec. 41-11-1, 60-7B-1; 1989),
but the New Mexico Supreme Court has found the statutorily mandated damages
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37
cap to be unconstitutional (Richardson v. Carnegie Library Restaurant, (N. Mex.,
1988).
North Dakota law provides for liability to injured parties when alcohol is
negligently served to an obviously intoxicated patron or a person under the age of
21. The law provides for both commercial server and social host liability (N. D. Cent.
Code Sec. 5-01; 1989).
Statutes in Rhode Island allow recovery when a commercial server provides
alcohol to a minor or to a visibly intoxicated patron. The plaintiff must prove the
service of the alcohol was a proximate cause of the injury. The suit must be brought
within three years from the date of injury, and the plaintiff may be entitled to both
actual and punitive damages (R. I. Gen. Laws Sec. 3-14-1 to 3-14-15; 1989).
Vermont law grants dram shop liability in cases where a server provides alcohol
to a patron apparently under the influence of alcohol or to a patron whom the server
should reasonably know is intoxicated or under the influence of alcohol or to minors
or for service after legally mandated serving hours (Vt. Stat. Ann. Tit. 17, Sec. 501;
1989). No social host liability is mandated by law.
Still other states have no statutory provisions regarding dram shop liability and
Those states include Hawaii, Oklahoma,
South Carolina, Washington, and West Virginia.
are limited to common law cases instead.
In Hawaii, tavern owners who serve obviously intoxicated persons in violation
of a criminal statute may be held liable for damages resulting from the negligent
service (Ono v. Applegate, 1980).
Oklahoma courts have held that a server has a duty of care not to serve alcohol
to intoxicated patrons, paving the way for dram shop claims based on a theory of
negligence (Brigance v. Dove Restaurant, 1986).
In South Carolina, negligence actions may be brought by injured third parties for
the service of intoxicated persons by commercial establishments under common
law. Recovery is not allowed against social hosts due to negligent service, however
(Christiansen v. Campbell, 1985).
Washington courts have held that under a theory of negligence dram shop
liability exists where the consumer was obviously intoxicated, was in a state of
helplessness, or had a special relationship to the server (Wilson v. Steinbach,1982).
West Virginia courts recognize common law liability for the service to minors
(Hutchinson v. Mitchell, 1957).
While the District of Columbia has no dram shop statute relating to the third party
civil liability of servers of alcohol to third persons, a code provision makes it a crime
to serve alcohol to intoxicated persons (D. C. Code Ann. Sec. 25-121; 1989). This
does not give rise to third party civil actions, however, either under the statutory
provisions or under the common law.
States with no statutes allowing recovery from servers of alcoholic beverages
and common law or court cases that have specifically denied dram shop liability are
Arkansas, Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South
Dakota, and Virginia.
38
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CONCLUSION
In response to the growing concern over the incidence of drunk driving, many
operators in the hospitality industry have sought to protect themselves from liability
by conducting server training programs designed to help servers recognize intoxicated patrons. To date, these responses have not been tested in litigation, so
whether they will limit server liability is uncertain.
This article has discussed currenttrends in dram shop legislation throughout the
United States and the development of dram shop laws in light of conflicting public
policies. Through a better understanding of the legislative process, those in the
hospitality industry should be better able to participate and influence the future
development of dram shop law.
REFERENCES
Alabama Code Sections 6-5-70, 6-5-71 (1989).
Alaska Statute Sections 04.16.030, 04.16.051, 04.21.020 (1989).
Arizona Revised Statutes Annotated Section 4-311 (1989).
Barboza v. Decas, 311 Mass. 10, 40 N. E. 2d 10 (1942).
Bracke, A. J. (1988). The evolution of dram shop law: Is Kentucky keeping up
with the nation? Kentucky Law Review, 15, 539-558.
Brigance v. Dove Restaurant 725 P.2d 200 (Okla. 1986).
California Business and Professional Code Secs. 25602, 25602.1 (West, 1989).
California Civil Code Section 1714 (1989).
Christiansen v. Campbell 328 S. E. 2d 351 (S. C. App. 1985).
Cimino v. Milford Keg, Inc. 385 Mass. 323, 431 N. E. 2d 920 (1982).
Colorado Revised Statute Section 12-47-128.5, 13-21-103 (1989).
Connecticut General Statute Section 30-102 (1989).
District of Columbia Code Annotated Section 25-121 (1989).
El Chico Corp. v. Poole 732 S.W.2d 306 (Texas 1987).
Elder v. Fisher 247 Ind. 598, 217 N.E.2d 847 (1966).
Erickson, J. R. & Hamilton, D. H. (1983). Liability of commercial vendors,
employers and social hosts for torts of the intoxicated. Wake Forest
Law Review, 19
, 1013-1048.
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39
Florida Statutes Annotated Section 768.128 ( West, 1989).
Georgia Code Annotated Section 51-1-40 (1989).
Hutchinson v. Mitchell 101 S.E.2d 73 (W. Va. 1957).
Idaho Code Section 23-808 (1989).
Illinois Revised Statute Chapter 43, Section 135 (1989).
Indiana Code Section 7.1-5-10-15.5 (1989).
Insurance Information Institute, Property/Casualty Facts (1990).
Iowa Code Annotated Section 123.49(1) (1989).
Kavorkian v. Tommy’s Elbow Room 711 P.2d 160 (Alaska 1985).
Maine Revised Statutes Annotated Title 28-A, Section 2501-2516 (1989).
Maroney, P., Nelson, J. & Perrewe, P. (1990, June). Modification of the collateral
source rule: The effect on jury awards. The Journal of Insurance
Regulation, 8
(4), 408-421.
Massachusetts General Laws Annotated Chapter 231, Section 85T (West, 1989).
Meade v. Freeman 93 Idaho 389, 462 P.2d 54 (1969).
Michigan Comp. Laws Annotated Section 436.22(1 ), (3)-(11), (1989).
Minnesota Statute Annotated Sections 340A.801-340A.802 (West, 1989).
Mishky, E.J. (1984). The liability of providers of alcohol: Dram shop acts.
Pepperdine Law Review, 12, 177-213.
Mississippi Code Annotated 67-3-73 (1989).
Missouri Revised Statute 537.053 (1989).
Montana Code Annotated 27-1-710 (1989).
Naples v. Chinese Palace, Inc., 89 So. 2d 159 (Ala. 1980).
New Hampshire Statute Annotated 507-F:1-8 (1989).
New Jersey Statute Annotated 2A:22A-1-7 (West, 1989).
New Mexico Statute Annotated 41-11-1, 60-7B-1 (1989).
New York General Obligation Laws 11-100, 11-101 (McKinney, 1989).
40
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Nolan v. Morelli 154 Conn. 432, 226 A.2d 383 (1967).
North Carolina General Statute 18B-120-129 (1989).
North Dakota Cent. Code Section 5-01 (1989).
Ogilvie, R. B. (1958). History and appraisal of the Illinois dram shop act. University of Illinois Law Review, 1958, 175-190.
Ohio Revised Code Annotated 4399.01, 4399.18 (1989).
O’Neal, B. (1988, August 2). Statement before U.S. Senate Committee on
Commerce, Science and Transportation. Washington, DC: Institute for
Highway Safety.
Ono v. Applegate 612 P.2d 533 (Hawaii 1980).
Oregon Revised Statute 30.950, 30.960 (1989).
Pennsylvania Statute Annotated Title 47, Section 4-497 (1989).
Phillips v. Derrick, 54 So. 2d 320 (Ala. 1951).
Ramsey v. Anctie, 106 N. H. 375, 211 A.2d 900 (1965).
Rappaport v. Nichols, 31 N. J. 188, 156 A.2d 1 (1959).
Reeves v. Bridges, 284 S. E. 2d 416 (Ga. 1981).
Rhode Island General Laws 3-14-1 to 3-14-15 (1989).
Richardson v. Carnegie Library Restaurant 763 P.2d 1153 (N. Mex. 1988).
Seibel v. Leach, et al. 288 N.W. 774 (1939).
State for Use of Joyce v. Hatfield 197 Md. 249, 254-255, 78 A. 2d 754, 756
(1951).
State of Utah. (1982, November 5). The recommendations of the Governor’s
commission on drinking and driving. (Available from the State of Utah)
Suffer v. Hutchings, 327 S. E. 2d 716 (Ga. 1985).
Tennessee Code Annotated 57-10-101 (1989).
Texas Alcoholic Beverage Code Annotated Section 2.01-2.03 (Vernon, 1989).
Utah Code Annotated 32A-14-1 (1989).
Vermont Statute Annotated Title 17, Section 501 (1989).
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41
Ward v. Rhodes, Hammond, and Beck, Inc. 511 So. 2d 159 (Ala. 1987).
Waynick v. Chicago’s Last Department Store 269 F.2d 322, (7th Cir., 1959).
Wilson v. Steinbach 656 P. 2d 1030 (Wash. 1982).
Wisconsin Statute 125.035 (1989).
Wyoming Statute 12-5-502 (1989).
42
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See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/319936735
Restaurant Liability for Contaminated Food and Beverages Pursuant to
Negligence, Warranty, and Strict Liability Laws
Article · January 2017
DOI: 10.20448/807.3.2.63.100
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Restaurant Liability for Contaminated Food
and Beverages Pursuant to Negligence,
Warranty, and Strict Liability Laws
Global Journal of Social
Studies
Vol. 3, No. 2, 63-100, 2017
e-ISSN: 2518-0614
Sciences
Frank J. Cavico1۞
Bahaudin G. Mujtaba2
Stephen Muffler3
Marissa Samuel4
Nicolas- Michel Polito5
Professor of Business Law and Ethics The H. Wayne Huizenga College of Business and
Entrepreneurship Nova Southeastern University, USA
2
Professor of Management The H. Wayne Huizenga College of Business and Entrepreneurship Nova
Southeastern University, USA
3
Attorney At Law Adjunct Professor of Business Law and Ethics The H. Wayne Huizenga College
of Business and Entrepreneurship Nova Southeastern University, USA
4
Attorney At Law Part-Time Professor of Management The H. Wayne Huizenga College of
Business and Entrepreneurship Nova Southeastern University, USA
5
The H. Wayne Huizenga College of Business and Entrepreneurship Nova Southeastern University,
MBA. 2016 School of Business Fairleigh Dickenson University Master of Accounting, 2018
(expected), USA
1
(۞ Corresponding Author)
ABSTRACT
Managers, owners and employees of all food providers must make sure that their products are safe,
wholesome, and unadulterated prior to selling them. They must all be experts in making, storing,
selling, preparing, and serving food. Otherwise, they could hurt consumers and face lawsuits since
foodborne illnesses are a serious problem in the United States and around the world. Each year, about
48 million people in the United States suffer from foodborne illnesses that are linked to Salmonella,
Norovirus, Listeria, and E. coli. This article examines three legal liability theories of negligence,
warranty, and strict liability that are linked to contaminated food and beverages provided by
restaurants. The authors end with recommendations to restaurant owners, employers, and managers
on how to avoid liability by going above and beyond the law to provide quality food and beverages.
Keywords: Restaurant, Contamination, Negligence, Warranty, Strict liability.
DOI: 10.20448/807.3.2.63.100
Citation | Frank J. Cavico; Bahaudin G. Mujtaba; Stephen Muffler; Marissa Samuel; Nicolas- Michel Polito (2017). Restaurant Liability
for Contaminated Food and Beverages Pursuant to Negligence, Warranty, and Strict Liability Laws. Global Journal of Social Sciences
Studies, 3(2): 63-100.
Copyright: This work is licensed under a Creative Commons Attribution 3.0 License
Funding: This study received no specific financial support.
Competing Interests: The authors declare that they have no competing interests.
History: Received: 11 April 2017/ Revised: 17 August 2017/ Accepted: 22 August 2017/ Published: 30 August 2017
Publisher: Online Science Publishing
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Global Journal of Social Sciences Studies, 2017, 3(2): 63-100
1. INTRODUCTION
In the modern world, foodborne illnesses are a serious problem in the United States as it hurts consumers,
brands, and keeps medical facilities tied up with the treatment of unnecessary illnesses. Cogan (2016) using data
from the Centers of Disease Control and Prevention, reports that one in six people in the U.S., approximately 48
million, suffer from foodborne illnesses annually, which are principally caused by Salmonella, Norovirus, Listeria,
and Escherichia coli (E. Coli). Moreover, annually, 128,000 people require hospitalization and 3000 die from
foodborne illnesses (Cogan, 2016). What legal redress do these harmed consumers have? That question is the
essence of this article. The issue of the legal liability for contaminated food is even more pronounced today because
many supermarkets and grocers are now engaging in much more take-out food business; and, moreover, the food
meals and items involved are a lot more sophisticated and complex than past offerings. The Wall Street Journal
(Newman, 2016) pointed out three recent contamination examples: Whole Foods Market, Inc. was ordered by the
Food and Drug Administration (FDA) to commercially close one of its commercial kitchens that produced fresh
meals for stores due to concerns about safety lapses in a Boston-area facility which resulted in a listeria outbreak;
also in 2016, an E-coli outbreak that sickened 19 people that was linked to rotisserie chicken salad that was made at
Costco Wholesale Corp.; and deli foods from the Boise Co-Op, a natural foods grocer in Idaho, were tied to a
salmonella outbreak in 2015 that made almost 300 people sick. The Wall Street Journal (Newman, 2016) further
reported that the U.S. Centers for Disease Control and Prevention indicated that food contamination outbreaks
doubled from 2014 to 2015, where in that latter year 23 outbreaks occurred, 572 people were sickened, and 42
people were hospitalized. Salmonella was the most frequent outbreak linked to stores, followed by the norovirus
(Newman, 2016). Nevertheless, freshly prepared meals are plainly now “big business.” The Wall Street Journal
(Newman, 2016) reported that in 2005 freshly-prepared foods generated $15 billion in sales, but that amount nearly
doubled to approximately $28 billion in 2015. Fortune (Kell, 2016) recently profiled one of these new companies
called Blue Apron, which bills itself as a “meal-kit-delivery startup” company, selling meal kits (recipes and
ingredients) using an “eclectic mix” of “precise” oils, spices, proteins and farm-fresh foods as well as other
ingredients (Kell, 2016). One meal example is a summer green salad with green beans and carrots, grilled
barramundi on top of an heirloom-tomato salad with smashed crispy fingerling potatoes. The company is just four
years old and is valued at $2 billion with 4000 employees, selling 8 million meal kits a month, which cost $9.99 per
person or $8.74 each for a family plan, excluding delivery costs (Kell, 2016). Furthermore, as reported in the Wall
Street Journal (Haddon and Nassauer, 2016) Amazon.com, has developed an e-commerce fresh food business, called
Amazon Fresh, which is aggressively competing with traditional grocers and other online food merchants. In 2014,
the Wall Street Journal (Haddon and Nassauer, 2016) reported that Amazon and other online food merchants
achieved $6.3 billion in sales, which amount was up 20% from 2013.
When it comes to the safety of food items and ingredients, regardless of how or where purchased, the consumer
is in a decidedly disadvantageous position when it comes to information. Cogan (2016) explains:
Consumers are burdened by significant informational asymmetries with respect to the food they eat. Possessing
less information than farmers, processors, transporters, retailers and others who grow, handle, prepare, and sell
food, consumers cannot fully discern risky food from safe food. Was the food dropped on the floor? Was it
exposed to contaminants and pathogens? Consumers almost never know. Furthermore, the nature of foodborne
illness creates its own information problems. The period of time between infection by a pathogen and the onset
of symptoms is variable. Some foodborne illnesses take a few hours to develop, while others can take a week or
more. This not only makes it harder for victims of foodborne illness to link their sickness to a particular food,
but the passage of time increases the likelihood that evidence of the contaminated food (i.e., the leftovers) will
64
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Global Journal of Social Sciences Studies, 2017, 3(2): 63-100
be unavailable for testing – thereby severing the empirical connection between the illness and its food source
(pp. 1501-1502).
Yet despite the aforementioned informational and practical problems, the consumer harmed by unsafe food or
beverage products does have certain legal avenues to pursue to achieve redress. This article will examine three legal
doctrines that the injured consumer can use to sue restaurants as well as other parties on the food chain, to wit: the
common law tort of negligence, warranty law based on statutory law in the Uniform Commercial Code, and the
common law tort of strict liability. The article, after this introduction section and brief definitions and limitations
sections, provides a legal overview of these three legal doctrines wherein basic principles and elements are set forth
and illustrated. The article then examines the three main legal areas in the context of recent food and beverage case
law involving restaurants. Recent court cases are examined in depth. Next, based on the legal analysis, the
knowledge and experience of the authors, as well as insight gained from legal and management commentary, the
authors discuss the implications of food and beverage liability for employers and managers in the restaurant
business. Then, premised on the legal analysis and discussion of liability implications the authors provide certain
recommendations to restaurant owners, employers, and managers on how to avoid liability. The article ends with a
brief summary.
2. DEFINITIONS OF KEY TERMS
Food contamination or contaminated food is the presence in food of harmful, unpalatable, or otherwise foreign
substances, for example, microorganisms, diluents, dirt, dust, chemicals, toxic substances, microbes, and/or
organisms, before, during, or after processing or storage, which can cause consumer illness (Encyclopedia of
Medical Concepts, 2016; Wikipedia Food Contaminant, 2016). Adulterated food, generally, is food that is not pure,
safe, or wholesome because it contains poisonous or deleterious substances or contains foreign matter or filth or
food that is otherwise contaminated, and thus the food is injurious to health (Wikipedia, 2016). Note that the federal
government in the Food, Drug, and Cosmetic Act and the Federal Meat Inspection and the Poultry Products
Inspection Act has other detailed and technical standards of what makes food “adulterated,” including impermissible
and permissible pathogens (that is, microorganisms such as bacteria) in certain types of food (U.S. Legal – Legal
Definitions, 2016; Wikipedia Food Contaminant, 2016) but such a scientific micro-biological examination is beyond
the scope of this article. Finally, foodborne illness, also known as foodborne disease or food poisoning, is any illness
resulting from contaminated food (Wikipedia, 2016). States also have food adulteration statutes (Cousineau, 2010)
but such an examination is also beyond the purview of this article.
3. LIMITATIONS
This article has certain limitations. First, the article primarily deals with the three conventional legal doctrines
as designated in the title and briefly addressed in the introduction, all of which are based on state law. Negligence
and strict liability are, as noted torts, based on the common law of the states; and warranty law is based on the
Uniform Commercial Code, which is a form state statutory law. Accordingly, the areas of the law examined herein
are highly dependent on the law of the several states, which of course can vary; and, moreover, there actually may
be contractions in interpretation on the appellate level in the states, which ultimately the Supreme Court of the
state will have to resolve. So, for a particular lawsuit reference must be made to the law of the state having
jurisdiction or if a federal “diversity” case (that is, the parties are from different states and the case is heard in
federal court) to the law of the state where the injury or harm occurred (Cavico and Mujtaba, 2014).There is also a
vast array of detailed federal law dealing with food safety, most prominently regulatory law emanating from the
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federal Food and Drug Administration, especially since the agency was further empowered to regulate by the the
Food Safety Modernization Act of 2011 which aims to prevent food contamination. These regulatory rules will not
be extensively covered; however, a failure to comply with government statutory or regulatory standards does
impact negligence liability, as will be seen and explained. Secondly, the article only deals with food and beverages
that are contaminated in the traditional sense of being unwholesome or having foreign objects therein. Accordingly,
the article will not extensively examine the growing area of the law dealing with the legal liability when food or
beverages lack “warnings” as to calorie counts, fats, cholesterol, and sugar, among other perceived harmful
substances. Similarly, the authors will not extensively cover the area of law dealing with the alleged “defectiveness”
of food or beverages because they were not designed better to be more healthful. The authors will mention these
areas, but save the health “warnings” (or lack thereof) and “design defects” aspect of food and beverage law for other
future academic efforts. As per the title of this article the focal point is the liability of restaurants. The legal liability
of food manufacturers, supermarkets, and grocers will be covered in future articles by the authors, though some
mention of the liability of these other parties on the food chain will be made in the article. Finally, this article will
not deal with the liability of the cruise lines since that examination would be in the very specialized areas of
admiralty law and international treaties.
4. LEGAL ANALYSIS
The injured party can sue for any or all of these legal theories to be examined herein as well as any others
supported by the facts and the law. The legal theories will be separate parts or “counts” of a lawsuit. As such, if one
or more is dismissed by the court or ruled against by a jury the plaintiff may be able to sustain his or her case on
another “count.” For example, in Goodman v. Wenco Foods Inc. (1992) the Supreme Court of North Carolina
dismissed the negligence claim but allowed the merchantability claim based on the Uniform Commercial Code to go
to the jury. Similarly, in the New Jersey Supreme Court case of Hollinger v. Shoppers Paradise of New Jersey Inc.
(1975) involving a consumer who contracted trichinosis from eating pork chops, the court ruled that though there
was no evidence of negligence in the handling of the meat, the case nonetheless could proceed on the theories of the
implied warranty of merchantability and strict liability in tort as the latter two theories do not require proof of
negligence by the defendant.
A. The Tort of Negligence
1.
Generally
Negligence is a form of conduct, but conduct that can give rise to liability under the common law based on the
tort, or civil wrong, of negligence. The traditional elements or components of the tort of negligence are as follows:
1) the existence of a duty, imposed by law, requiring persons to conform to a certain standard of conduct, to wit, the
“reasonable person” standard; 2) a failure on a person‟s part to conform to the aforementioned standard, that is, a
breach of the duty; 3) causation, that is, a reasonably close nexus or connection between the conduct and the
resulting harm, consisting in causation-in-fact as well as “legal” cause, which latter cause is also referred to as
“proximate cause”; and 4) an actual loss, harm, or damage resulting from the conduct (Keeton et al., 1984; Clarkson
et al., 2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). The burden of proof and persuasion are on the plaintiff
bringing the lawsuit to demonstrate that the elements of the tort are present (Gant v. Lucy Ho‟s Bamboo Garden,
1984). Although the tort of negligence in the United States is based on state law, the fundamental elements of the
tort, originally stemming from the old common law of England, as well as the elements of the tort as applied in the
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context herein, are generally consistent among the several states. In the next section of the article these elements
will be explicated both generally and in the context of food and beverage liability.
2.
Elements
a.
Duty
The first requirement to a negligence cause of action is the duty element. The duty, imposed by the law, is one
of due care. The duty to conform one‟s conduct to the conduct of a “reasonable person” is the essence of negligence
law. As explained by Keeton et al. (1984):
The whole theory of negligence presupposes some uniform standard of behavior….The standard of
conduct which the community demands must be an external and objective one, rather than the individual
judgment, good or bad, of the particular actor; and it must be, so far as possible, the same for all persons
since the law can have no favorites….The courts have dealt with this very difficult problem by creating a
fictitious person….Sometimes he is described as a reasonable person, or a person of ordinary prudence, or a
person of reasonable prudence (pp. 173-74).
A jury typically is the lay body of citizens which determines if the duty to act as a reasonably prudent person
was violated or breached. As further explained by Keeton et al. (1984): “The conduct of the reasonable person will
vary with the situation with which he is confronted. The jury must therefore be instructed to take the circumstances
into account; negligence is a failure to do what a reasonable person would do „under the same or similar
circumstances.”
b.
Breach of Duty
Once a legal duty has been established by the court (that is, the judge, who decides issues of law) then,
typically, unless waived, a jury (which decides issues of fact) must be empaneled to determine the factual issue of
whether the defendant has breached or contravened the duty. A breach of duty occurs when a defendant fails to
exercise due care and thus fails to act as a reasonable person (Keeton et al., 1984; Clarkson et al., 2012; Cavico and
Mujtaba, 2014; Cheeseman, 2016). The burden of persuasion in demonstrating a breach to the jury is on the plaintiff
bringing the lawsuit; and the standard of proof that the jury will use is the one characteristic for a civil case, such as
negligence, the “preponderance of the evidence,” standard (colloquially referred to as “50% plus 1” of the evidence)
(Keeton et al., 1984).
However, conversely, it needs to be pointed out that evidence of a lack of due care will defeat a negligence
claim. To illustrate, CNN.com reported on a situation where a man found the remnants of a frog or toad in his can of
Diet Pepsi after he had consumed some of the beverage and became sick. He called the Food and Drug
Administration (FDA) as well as poison control. The FDA investigated the local Pepsi bottling plant, but “…did
not find any adverse conditions or association to this problem,” and thus the agency had “not determined when or
how the contamination occurred,” and was “simply unable to determine when or how the specimen entered the
package” (Grinberg, 2009). Moreover, evidence of the presence of due care, for example, that a defendant producer
or seller met or exceeded government standards, may defeat a negligence claim since there would be no breach of
the duty of care. For example, in Goodman v. Wenco Foods Inc. (1992) evidence that the defendant hamburger
seller‟s ground beef processing standards exceeded U.S.D.A. requirements was sufficient for the court to dismiss a
negligence claim. Once a jury determines that the defendant acted in an unreasonable manner, and consequently the
duty of care has been breached, the next issue for the jury to determine is the causation element to a negligence
lawsuit.
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c.
Causation – Factual and Proximate
1.
Factual Causation
Causation is an essential element to a lawsuit for negligence; and there are two types of causation. One is called
“factual causation” (or at times “actual” or “cause-in-fact”) and the other is called “legal causation” or (perhaps better
because less confusing) “proximate causation.” Factual causation is simply a question of scientific fact, that is, as a
matter of science, and regardless of how long, attenuated, or convoluted the causation chain, did careless act “A”
cause ultimate harm “Z”? If the answer is “yes,” then factual causation is present (Keeton et al., 1984; Clarkson et al.,
2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). Causation can be established by direct evidence, circumstantial
evidence, expert testimony, lay testimony, or some combination thereof (Southern States Coop v. Doggett, 1982;
McCarley v. West Quality Food Service, 1998). The standard of proof for factual causation is the usual civil
“preponderance of the evidence” standard; that is, the evidence presented by the injured plaintiff must show that it
was more likely than not that the allegedly harmful food caused the plaintiff‟s injury Jackson v. Winn Dixie Stores
Inc. (1983). Of course, the foregoing comments are a bit simplistic statements since in the “real world” factual
causation can be quite complicated as when there is more than one cause or multiple causes of harm or where there
are possible intervening, supervening, and/or superseding causes. For example, in the case of Rouse v. George et al.
(1976) the court ruled that the injured plaintiffs failed to prove that the consumption of the defendant packer‟s
luncheon meat, which allegedly contained a sliver of glass, was the cause-in-fact of their illness principally because
their illness occurred several hours after they ate the food. Similarly, in the case of Brown v. General Foods Corp
(1978) the medical evidence presented by the plaintiff was not sufficient to prove by a preponderance of the evidence
that the plaintiff‟s severe tenderness to the big toe area of the right foot was caused by the ingestion of penicillin
fungus which allegedly was growing on a moldy banana peel at the bottom of a box of grape nuts cereal. To
compare, in the case of Miller v. Atlantic Bottling Corp (1972) the fact that the showing of harmful symptoms
followed shortly after the consumption of the contaminated food was sufficient for the court to allow the case to go
to the jury on the issue of a causal connection.
2.
Legal or Proximate Causation
Even if factual causation is determined to be present by the jury, the second causation element – proximate
causation – must also be present. Proximate causation is a very interesting and unusual legal doctrine indeed in that
it protects careless defendants. The application of the doctrine is within the province of the jury. Even if a defendant
acted carelessly and unreasonably and caused harm the defendant is not liable for the all the harmful consequences
of his or her careless action or omission; rather, pursuant to the proximate causation doctrine a defendant is only
liable for the reasonably foreseeable adverse consequences of his or her wrongful act; and as such the careless
defendant is not liable for any unforeseeable, unusual, or remote harmful consequences. Thus, if a causation chain is
very long and attenuated the jury is allowed to “cut off” the causation chain, and thus exonerate the defendant from
those consequences which the jury has deemed unforeseeable (Keeton et al., 1984; Clarkson et al., 2012; Cavico and
Mujtaba, 2014; Cheeseman, 2016). The rationale for the doctrine “is that there be some reasonable connection
between the act or omission of the defendant and the damage which the plaintiff has suffered” (Keeton et al., 1984).
Once again, the typical civil “preponderance of the evidence” standard is used to determine if there is a causal
connection or relationship between the careless act and the ultimate harm (Way v. Tampa Coca Cola Bottling Co.,
1972). Usually, expert testimony in the form of a medical expert will be necessary to establish the causal connection
between the illness or injury and the consumption of certain food or beverage, unless the causal connection would
be clearly apparent to a jury composed of lay persons based on the circumstances of the case. A Georgia appeals case
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illustrates both types of causation. In Worthy v. The Beautiful Restaurant (2001) the plaintiff, who was six months
pregnant, had eaten contaminated eggs at the defendant‟s restaurant. She began experiencing abdominal pain,
vomiting, and diarrhea. Two weeks later she saw a doctor and the following day was admitted to the hospital,
where it was ascertained that her fetal membranes had ruptured prematurely; and seven days later her son was born
with several birth defects. The plaintiff, however, was also diagnosed with a sexually transmitted disease and a
urinary tract infection. Accordingly, the issues arose as to what was the factual cause of the harm to her and to her
child; and, even if the eggs were deemed to be the factual cause of the harm to her and to the child, were the bad
eggs the proximate cause of the harm. That is, was it reasonably foreseeable under the proximate cause doctrine
that her illness and the rupture of her fetal membranes causing harm to her child were a reasonably foreseeable
consequence of eating “bad” eggs? The court allowed those issues as well as the other aspects of negligence to go to
a jury for resolution Worthy v. The Beautiful Restaurant (2001).
d. Damages
The final element in a cause of action for negligence is the presence of damages. An actual loss or harm to the
person or interests of the person is required. Nominal, that is, token, damages are insufficient as are damages for the
threat of any future harm. Actual damages can include harm to the person, medical costs and expenses, lost wages,
damage to his or her property – real or personal, or economic harm. Moreover, since negligence is a tort, as per the
common law, damages can include damages for emotional distress and “pain and suffering” at the discretion of the
jury. Finally, if the negligence is deemed by the jury to be “gross,” that is, flagrant, or reckless, then the jury can
impose at its discretion punitive damages as punishment and as a deterrent (Keeton et al., 1984; Clarkson et al.,
2012; Cavico and Mujtaba, 2014; Cheeseman, 2016).
One problem for an injured consumer who wants to sue for emotional distress damages based on negligent
conduct is the traditional “impact” rule of negligence law which maintains that one has to be physically impacted, at
least touched, in order to sustain an emotional damage recovery for the negligent conduct (Cavico and Mujtaba,
2014; Cheeseman, 2016). This rule could be a problem in a food or beverage negligence case in some states when
the consumer does not ingest a portion of the contaminated food or is not harmed by the object in the food. For
example, in Doyle v. Pillsbury (1985) the plaintiff consumer alleged that she opened a can of peas, saw an insect
floating in the can, was frightened, fell backwards over her chair, and suffered emotional distress; however, the
Florida Supreme Court denied recovery because the plaintiff did not consume the adulterated food and thus she was
not “impacted.” Ingestion of the food, therefore, was required by the court. Similarly, if a customer sees hair in his or
her food during a restaurant meal but does not eat the food, the customer may be “grossed out” and thus loudly
complain to the staff and management, but the customer likely will not be able to sue for emotional distress because
of the lack of an impact. However, if the consumer does ingest the food or beverage, for example, tasting a flat soda
and then seeing an apparent used condom in it, the consumer, who became nauseated and went to a health facility to
be vaccinated, and then was tested twice for HIV-AIDS, could sue for the emotional harm caused, ruled the Florida
Supreme Court (Hagan v. Coca-Cola Bottling Co., 2001). Note, though, that some courts have attempted to
liberalize the older “impact” rule in food cases by saying that the consumer had to either ingest the food (i.e., the
“impact”) or suffer objective physical systems in response to the foreign substance (Way v. Tampa Coca Cola
Bottling Co., 1972).
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3.
The Doctrine of Res Ipsa Loquitur
When an injured plaintiff lacks direct evidence that the defendant breached the duty of care, the plaintiff may be
able to use the doctrine of res ipsa loquitur (“the thing speaks for itself”) to create an inference or presumption of
negligence. This presumption is a rebuttable one, it must be emphasized. The injured plaintiff must show that the
defendant had control of the situation that caused the harm to the plaintiff. The plaintiff also will still have to show
that it was more likely than not that the defendant caused the plaintiff‟s injury (Keeton et al., 1984; Clarkson et al.,
2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). Moreover, the plaintiff will still have to demonstrate the
causation and damages elements of a negligence lawsuit. A favorable granting of a res ipsa loquitur request will allow
the injured consumer to proceed with circumstantial evidence, primarily the fact of the injury itself and the
unusualness of its occurrence (Keeton et al., 1984; Clarkson et al., 2012; Cavico and Mujtaba, 2014; Cheeseman,
2016).
Courts typically will require a three-part test to determine if res ipsa loquitur is applicable to a case, to wit: 1) the
injury or harm was caused by an agency or instrumentality under the exclusive control of the defendant; 2) the
injury or harm must be of a type that ordinarily does not occur unless someone was negligent; and 3) the injury or
harm must not have been due to any voluntary act or contributing fault of the injured plaintiff (Keeton et al., 1984;
Clarkson et al., 2012; Benton, 2012-2013; Cavico and Mujtaba, 2014; Lipp and Hafer, 2014). For example, in Ford v.
Miller Meat Company (1994) the injured plaintiff brought a lawsuit against a supermarket and meat supplier for
negligence utilizing res ipsa loquitur when she broke a tooth when she bit into a bone fragment in ground beef she
had purchased. Similarly, in Schafer v. JLC Food Systems (2005) the injured plaintiff utilized res ipsa loquitur to
recover for a throat injury caused by a defective pumpkin muffin.
As Benton (2012-2013) points out, the “exclusive control” element could present a huge challenge to the
injured consumer in foodborne illness cases since based on a particular state‟s law the plaintiff may have to exclude
all other reasonable possibilities of his or her illness. That is, evidence is required for a jury to make an inference
that the contamination or other unsafe aspect of the food or beverage product came from a particular defendant‟s
lack of due care (Benton, 2012-2013; Lipp and Hafer, 2014). For example, in Burnett v. Essex Insurance Company
(2000) the plaintiffs who suffered abdominal problems allegedly from bacteria in food did not prevail because their
physician could not eliminate other possible causes of illness, such as the local drinking water or that one of the
plaintiffs was susceptible to gastric disorders. Similarly, in Hairston v. Burger King Corporation (2000) the plaintiff
also failed to recover because she had eaten previous meals, and her own medical expert testified that the illness
could have been caused by something she ate an hour or even a week before eating the food at the defendant‟s fastfood restaurant and becoming ill. However, in other more “plaintiff-friendly” jurisdictions an injured or sick plaintiff
does not have to exclude every other possible cause of his or her injury or illness; rather, a court will allow the case
to go to the jury to determine if the defendant‟s negligence was the most reasonable cause or reasonably certain
cause of the plaintiff‟s injury or illness (See, for example, (Gant v. Lucy Ho‟s Bamboo Garden, 1984; Benton, 20122013)).
4.
Negligence Per Se
A duty of due care may also be specifically created by a statute or government regulation. As such, the violation
of a statute with such a duty which contravention causes injury to a party is called “negligence per se.” The injured
plaintiff would have to prove that such a statute existed, it was promulgated to protect against the type of harm
suffered, and the injured plaintiff was within a class of people to be protected by the statute (Keeton et al., 1984;
Clarkson et al., 2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). For example, in the New Jersey Supreme Court
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case of Koster v. Scotch Associates (1993) the court ruled that the restaurant furnished food to the plaintiff, who
suffered food poisoning, in violation of the state‟s adulterated food statute and thus the violation of the statute itself
was an act of negligence. Note, however, that although violating a statute may be prima facie evidence of negligence
the injury must have a direct, factual, and proximate connection to the violation (Parra v. Tarasco Inc., 1992). For
example, in the case of Coward v. Borden Foods (1976) the fact that there was proof of a violation of the Food and
Drug Act could constitute negligence per se if the violation factually and proximately caused the injury to the
plaintiff.
There are, obviously, many statutes and regulations regarding food and beverage safety. To cite one
enactment, in 2011, President Obama signed the Food Safety and Modernization Act (FSMA), which Congressional
statute seeks to improve the nation‟s food safety by empowering the Food and Drug Administration (FDA) to
further and more effectively regulate food and beverages by promulgating, overseeing, and enforcing food safety
regulations (Benton, 2012-2013). One important provision of the FSMA grants the FDA the authority to recall
food products if the agency determines that there is a “reasonable probability” that an article of food or beverage is
adulterated or mislabeled and the use or exposure will cause adverse health consequences to humans or animals
(Benton, 2012-2013). The FMSA does not provide a private cause of action for damages based on an FDA food
recall. However, Benton (2012-2013) points out that critics of the statute are concerned that “…‟reasonable
probability‟ is not a stringent enough standard and that when combined with a mandatory recall will be seen as
proof that food is dangerous, encouraging the filing of successful lawsuits.” That is, the fact of the food recall may
be argued as evidence that the standard of care was breached for a negligence lawsuit, the food is not merchantable
for a warranty lawsuit, and/or the food is “defective” for a products liability lawsuit.
5.
Defenses
Contributory negligence and comparative negligence are defenses to a negligence lawsuit which are based on
the law of each state (Keeton et al., 1984; Clarkson et al., 2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). The
former holds that a plaintiff who is even partially responsible for his or her own injury cannot recover anything
from a defendant; and in the latter situation a jury is allowed to apportion the fault to each party and then to deduct
that percentage of fault from the plaintiff‟s recovery (Keeton et al., 1984; Clarkson et al., 2012; Cavico and Mujtaba,
2014; Cheeseman, 2016). Food and beverage examples would be when the plaintiff caused his or her own illness
through his or her own negligent conduct by the careless storage or preparation of a food or beverage product. One
illustration of an assertion of comparative negligence is the Florida Court of Appeals case of Coulterv v. American
Bakeries Company (1988) where the consumer, who had an abscessed tooth, dissolved a donut in milk, and while
drinking the milk through a straw, had a piece of wire which was in the donut lodged in her throat; but the court
ruled that she was not comparatively negligent under the circumstances for not chewing the donut.
Another example of a defense would be assumption of the risk, where the plaintiff knowingly and voluntarily
assumes a known risk or danger that a reasonable person would not. Assumption of the risk is a complete defense to
a negligence lawsuit (Keeton et al., 1984; Clarkson et al., 2012; Cavico and Mujtaba, 2014; Cheeseman, 2016). So, for
example, if one continues to eat food with known foreign fragments in it and is injured thereby it can be said that
one assumed the risk of injury. Segal (2006) even posits that assumption of the risk could be used in eating
improperly, to wit: “Eating in excess or consuming food that is high in fat can obviously cause health problems for
consumers, especially children who are part of the fast-food revolution.”
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6.
Recent Negligence Cases
Turning one‟s focus to recent restaurant liability based on negligence claims, one sees a variety of cases that
focus on presence or absence of the four elements of common law negligence claims. In general, courts will allow
negligence claims to go to a jury if there are disputed issues of fact as to the parties‟ actions being reasonable or not,
when preparing or consuming food at a restaurant. In the case of Amiano v. Greenwich Village Fish Company Inc.
(2016) the plaintiff customer claimed to have been injured by a piece of fish bone left in her flounder, after she had
requested that the whole flounder be filleted. The plaintiff contended that she attempted to chew a piece of fish and
immediately felt a large fishbone in her mouth, which she then removed. She alleged that the bone was
approximately 2 inches in length and 1/4 of an inch thick. She then continued to consume the fish and attempted to
swallow once again and felt another large bone get stuck in her throat. This second bone was much larger than the
first and it perforated her esophagus and it had to be surgically removed. The restaurant defendant provided no
evidence affirming their claim that the fillet was adequately deboned, or that the bone Plaintiff swallowed was just a
pinbone. Therefore, the restaurant‟s motion for summary judgment was denied since there remained issues of fact
as to whether the flounder was filleted properly, whether the plaintiff in fact choked on a pinbone or a larger bone,
and whether the size of the bone that injured Plaintiff’s throat is a bone that could be reasonably anticipated to be
present in filleted fish. The court felt it was up to a jury to determine these facts and the defendant‟s comparative
negligence claim that the plaintiff did not take care in eating the flounder.
Likewise, in the case of Dellatorre v. Buca Inc. (2017) a customer ordered the “Linguine Frutti di Mare,” which
is a pasta dish that the menu described as having “shrimp, baby clams, mussels and calamari in spicy red clam sauce”
and had a picture of the dish showing linguine surrounded by approximately twenty fully-intact mussel shells. The
customer consumed the food item and near the end of his meal he felt a knife-like cutting sensation down his throat
and was rushed to the hospital for an immediate operation as he had swallowed a broken mussel shell, about oneand-a-half to two inches long. The appeals court declined to affirm the trial court‟s summary judgment order in
favor of the restaurant, and explained its rationale as follows:
Which party broke the mussel shell and if it was submerged in the pasta when served are dispositive
factual issues with respect to determining if Buca [Restaurant/Defendant] was negligent. If Appellant
[Customer/Plaintiff] broke the shell after it was served to him and it was not served submerged (and thus
not visible) in the pasta, it would be difficult to conclude that Buca was negligent for serving this order of
Linguine Frutti di Mare — a dish known to contain mussel shells. However, if Buca did in fact serve
Appellant the broken mussel shell and/or it was not visible when the entrée was presented to Appellant,
then the jury could find that no patron would reasonably expect to so find a broken shell in this
dish….Although the trial court here applied the correct reasonable expectation test, this case is no
exception to the general rule that most cases presenting this scenario require jury trials. A Buca patron
would reasonably expect whole mussel shells with the pasta. After all, the menu explained and showed that
the dish came with fully intact mussels, arrayed in a ring on top of the pasta. The determinative questions
at issue in this case are whether Appellant was served a broken mussel shell and whether it was submerged
(“hidden”) in the pasta (Dellatorre v. Buca Inc., 2017).
Since in Dellatorre v. Buca Inc. (2017) there were material facts in dispute the appeals court ruled that the
lower court‟s dismissal of the lawsuit by means of summary judgment was improper; and a jury now would have to
be impaneled to decide the key factual issues.
In Martins v. Royal Caribbean Cruises Ltd. (2016) the parents of the decedent 17 year old cruise passenger
aboard the Explorer of the Seas, filed a wrongful death action sounding in negligence alleging that the ingestion of
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bacteria-ridden food onboard the cruise ship was the only food eaten 12-72 hours immediately prior to her death.
Dueling experts could not agree as to if the ingestion of a foodborne pathogen in the 12-72 hours before the onset
of her symptoms, the time when she was on the cruise, was the cause of the illness. Therefore, the court denied the
cruise ship company‟s summary judgment motion on the plaintiff‟s negligence count stating that the jury was in the
best position to weigh the expert testimony as to causation and the credibility of the medical experts involved.
Similarly, in Arencibia v. Joe‟s Place of the Bronx (2015) four restaurant patrons came down with symptoms of
salmonella poisoning within 6 to 36 hours of ingesting the food, which is well within the incubations period for
salmonella infection. The restaurant presented evidence that the food borne illness could have come from sushi the
plaintiffs ate near the same time-period, which food was served by another vendor, and not caused by the food items
prepared by the restaurant. However, the testimony of the plaintiffs together with the affirmations of the plaintiff‟s
expert witness (a doctor) and the information regarding the violations found by the Department of Health at Joe’s
Restaurant both before and shortly after plaintiffs’ salmonella poisoning, including the restaurant owner‟s own
admissions that his restaurant was shut down by the Department of Health as a result of violations, raised issues of
fact as to whether the source of plaintiffs’ salmonella poisoning resulted from food they consumed from defendant’s
restaurant.
Therefore, the court denied the defendant restaurant‟s summary judgment motion so that the jury
could be the trier of the disputed facts as to the plaintiff‟s negligence claim.
This same logic prevailed when the court in Weiner v. Dinex Group LLC (2014) denied both parties‟ summary
judgment motions as there was competing evidence as to what caused the aspiration pneumonia that afflicted the
plaintiff mere hours after eating a chickpea soup, skate, and a sorbet at the defendant‟s restaurant. In that case, the
court pointed out that the plaintiff‟s medical doctor expert opined that there was a reasonable degree of medical
probability that the chickpea soup caused the illness. However, the balance of the evidence showed that no other
customers were stricken with the disease after eating the same soup on the same day and the restaurant had not
received any recent health code violations. Further, the hospital where the plaintiff was taken for treatment did not
test his vomit or take any stool samples nor did it test the contents of his stomach and the doctors at the hospital
did not tell the plaintiff that his lab results showed the existence of bacteria or other pathogens in his body. Thus, as
to the plaintiff‟s negligence count along with the multitude of plaintiff‟s other theories of recovery, the jury was best
to conclude as to the cause of illness that had befallen the plaintiff.
The jury was also the appropriate trier of fact
in the case of Sims v. Dixie Restaurants Inc. (2012) where the judge denied the restaurant‟s motion for summary
judgment. In that case, within a few hours after the patron ate at the restaurant, he was rushed to a hospital‟s
emergency room experiencing severe nausea, vomiting, and diarrhea and he died four days later. To prove the
causation element, the plaintiff relied upon the autopsy report which concluded the death was caused by septic
shock and…
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