Scenario: You are at a nice restaurant eating your dinner. You order a meat or fish product, after all, who wouldn’t. Then, as you take a bite, you feel something lodge in your throat, and you begin to choke. At once, you sense a sudden and extreme fear. You cannot breath. You gesture wildly, but no sound comes out. Some one runs up behind you and performs the Heimlich, dislodging the foreign object, and leaving you feeling embarrassed and exhausted. You may require medical attention, which brings with it medical bills.
Question: Is the restaurant at fault, and does the law require them to pay for the medical expenses?
Thanksgiving is here and Christmas is right around the corner. Along with the coming end of year panic comes the end of year gorging ourselves with food (everyone say “YES!!!!”). During the holidays, turkey bones are not thought of as pesky, but rather, are sought out by young children like buried treasures. However, as exciting as finding one at home may be, finding one in your food at a restaurant may bring a little less excitement (see paragraph number one above).
Choking can be very scary for anyone and with good reason. Over 17,000 children under the age of 14 are treated for choking every year, according to the Centers for Disease Control and prevention. Keep in mind this number only includes children.
Adults don’t often worry about choking on their food until after it happens. We don’t go to a restaurant prepared to find something in our food large enough or sharp enough to hurt us. But what happens when we are caught off guard by an unexpected object in our food at a restaurant? Is the restaurant responsible? Is it a restaurant employee’s duty to help us in any way they can, including performing the Heimlich Maneuver?
The answers are “maybe” and “no”. In fact, none of the 50 sates has a law compelling a restaurant employee to perform the Heimlich Maneuver on a choking patron. Only one state, Connecticut, has a law that requires restaurant employees to know the maneuver, although they are not required to perform it should the need arise. (What?!)
What do restaurants have to do to protect us from encountering a choking hazard in the food they provide to us? Well, according to the Uniform Commercial Code a restaurant provides an “implied warranty” that their food is “merchantable”. A warranty is a promise by the seller that the goods being sold will conform to certain qualities, characteristics, or conditions. This means they have to serve food that is fit for human consumption. (“Fit for human consumption” has nothing to do with the nutritional value of the food or the taste of the food.)
When it comes to objects in food, some states use a Foreign/Natural Test in deciding liability in some cases. This means they look to whether the object found was foreign or natural to the food. For example, a turkey bone is natural to turkey whereas a marble is not. If the object found is not natural, than a restaurant may well be liable to the injured patron under the “product liability” laws. Medical bills, pain and suffering, all can be claimed under this scenario. .
Many states are leaning more to the Reasonable Expectation Test, which asks the question, “Should the consumer reasonably expect or anticipate the specific object in the food?” One would think that the same conclusions would come from this as the Foreign/Natural Test, however apparently “reasonable minds” can differ quite a bit. A good example here is one person finding part of a peach pit in a peach pie may think, “Oh, there is no way to avoid that,” whereas another person may think “I would never expect to find a pit in something that has been so processed.” What would you expect?
When it comes down to it, an injured victim must prove that the object was foreign or unexpected, and caused their injuries. They then must prove the nature and extent of the damage they have suffered as a result of the object. As a personal injury attorney who has experience with product liability cases, I know what it takes to be successful with cases like this. However, these cases can be very difficult, and it is hard to predict which will be successful because of the non-uniformity of which test to use and the span of what is considered “reasonable” to different people.
Regardless, why are we talking about “personal injuries so close to the holidays????? We need to be careful about what we eat, but we also need to enjoy ourselves. Happy “hunting” this holiday season, and here’s wishing you a bone free hunt!!
