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Palsgraf All Over Again:

Coming soon to a Torts exam near you? Here's the AP story:

A shrimp a hibachi chef tossed at a man eating at a Japanese steakhouse ultimately led to the diner's death, his family claims in a $10 million wrongful death lawsuit against the restaurant chain Benihana.

Jerry Colaitis wrenched his neck when he ducked to avoid the shrimp in the chain's Munsey Park restaurant, attorney Andre Ferenzo said in opening statements Wednesday.

Months after the January 2001 incident, the 43-year-old Long Island man died from complications caused by neck surgery he required afterward, the lawyer said. . . .

Thanks to reader Chris Buchanan for the pointer.

Related Posts (on one page):

  1. Palsgraf Loses Again:
  2. Palsgraf All Over Again:
JRDickens (mail):
I know most of you are lawyers or law students, but these kind of lawsuits drive me crazy. Like the lady who beat McDonalds because her HOT coffee burned her, this guy's family is just looking to cash in.

Heck, I think I'm gonna sue the NBA because I didn't try to join it when I was younger because I thought they would discriminate against because I was short, fat and white. It cost me millions I tell ya'.

I am using this opoportunity to interview lawyers who might want to take the case.
1.13.2006 2:03pm
nathan paul mehrens:
That brings back many 1L memories.
1.13.2006 2:10pm
anonymous coward:
"Like the lady who beat McDonalds because her HOT coffee burned her, this guy's family is just looking to cash in"

In the case of McDonalds the plaintiff (who I believe had third-degree burns) argued the company had ignored numerous serious customer injuries from serving their coffee at unsafe temperatures.

Perhaps Benihana chefs have a history of precipitating serious injuries with wanton shrimp throwing...
1.13.2006 2:14pm
Colts41 (mail):
JR --

Perhaps you're arguing that going to Benihana's is like going to a ball game, where spectators assume the risk of getting hit, and sometimes injured, by foul balls or flying pucks or flung footballs.

Anyone posting agree that Benihana's is like a ballgame?

I don't see it.

You go to a restaurant and you don't -- and should not reasonably expected to -- have to duck out of the way of very hot flying shrimp. Why? Because you're there to eat. Not watch a game of dueling hibatchis.

If a chef's flung shrimp hits a customer in the eye and causes permanent damage because it's hot-off-the-grill hot, should Benihana's be liable?

Damn right. It's one thing for the chef to toss the food to himself; it's quite another to throw it in the direction of diners. Again, this is not a ballgame.

Should a customer be obliged to let the food hit them, rather than duck? Does one now duck at their own risk at a restaurant?

No way. Benihana's is on the hook -- assuming all the elements of negligence are satisfied.

And, let's not forget a strict-liability argument: flinging hot shrimp is an inherently dangerous activity in a restaurant where diners are eating.

I don't see this case at all -- based on the limited info -- as an example of a frivilous lawsuit. Neither, apparently, does the judge, who's empaneled a jury.
1.13.2006 2:18pm
anonymous coward:
Well, sure, if the flung shrimp took out an eye or whatnot, you're looking at liability. Eugene's point is that the death was a highly indirect (and surely not forseeable) consequence of the shrimp-flinging.
1.13.2006 2:27pm
Nobody Special:
"Again, this is not a ballgame."

Actually, it is. Benihana ads invariably portray people with food (usually shrimp, sometimes sashimi) on their faces (typically the nose).

In other words, their own advertising indicates "come to our restaurant, we will hit you in the face with food."
1.13.2006 2:32pm
B. B.:
Colts41:

Have you eaten at a Benihana before? The chefs ALWAYS do stuff like this, it's part of the show. The shrimp isn't really hot either. In fact, if you went to Benihana you are in fact there for "dueling hibachis" as well as food. You don't get much food and there are places you can go to get better food. What the other places don't have are the chefs doing their tricks with the knives, fliping shrimp at you, etc.

I don't think the ballgame analogy is terribly inaccurate with Benihana. You're there for the show and the food, and while you don't expect to get nailed with the shrimp/ball, you are (or should be) entirely aware that the shrimp/ball may be flying at you, and indeed at Benihana, is virtually certain the the shrimp will fly at you (it's more of a flip, it isn't like they whip the thing at you, you're supposed to be able to catch it in your mouth).
1.13.2006 2:33pm
Edward A. Hoffman (mail):
The ballgame analogy misses an important point -- the Benihana chef allegedly tossed the shrimp at Colaitis intentionally, but ballplayers rarely try to hit spectators. The assumption-of-the-risk defense does not apply to intentional torts.

And in response to JRDickens: If the plaintiff had claimed McDonald's was at fault for the spill her case would have been silly. Instead, her claim was that the spill should not have injured her as seriously as it did because the coffee should not have been so hot, and that McDonald's knew about this problem from prior incidents but chose to do nothing about it. That is a sound argument.
1.13.2006 2:36pm
Kimberly (www):
Colts41, in this case, the family probably wasn't just there to eat, but to be entertained. Japanese steakhouses I've been to involve chefs tossing food in the air, flipping it to your plate, and otherwise demonstrating impressive facility with cooking. It's part of the experience. If this guy had been hit in the eye, maybe there's a case. If he ducked because of an errant shrimp, then wrenched his neck to an extent it required surgery, then died, it's unfortunate, but hardly foreseeable. And there's no way there's a strict liability case here.
1.13.2006 2:37pm
gab (mail):
Why didn't he just open his mouth?
1.13.2006 2:37pm
Eric Muller (www):
Michael Savage was very funny about this case on his radio show last night.
1.13.2006 2:39pm
SagansCosmos (mail):
JRDickens has a point. Bad analogies kill good arguments. Thanks. We all benefit from revisiting kernels of wisdom like this one most of us assume we've incorporated so well that they're no longer on our radar.

Jerry Colaitis had a point as well. His advice would read something like, "when an unknown object is hurling toward your head, duck!" If the late Mr. Colaitis had wanted to construct an analogy, he might try, "Bad decisions kill good people." The chef's decision to hurl shrimp in the general direction of diners should have taken into account the possibilty of injury to a diner caused by the diner's attempt to avoid being hit by an object the chef should have known the diner might not be able to identify as innocuous in time to avoid injury. With all those sushi knives slicing and chopping away, the reasonable diner would not discount the possibility that the unknown object might be an incredibly sharp knife, the kind of lethal projectile anyone would be expected to avoid.

Now I have some advice to dispense. If such lawsuits drive some people "crazy" perhaps these people would be wise to wait until symptoms of this so-called craziness subside before relying on words, logic and reason to express a viewpoint.

As long as we're dispensing free advice, don't forget...illegitimati non carborundum.
1.13.2006 2:39pm
Eric Muller (www):
gab, he didn't open his mouth because he was concerned about seeming shellfish.
1.13.2006 2:40pm
jallgor (mail):
Colts 41:
You have left a lot out of your analysis. Is Benihana really responsible for his death? It may have been negligent to throw shrimp at a customer and I will grant that a strained neck (or injured eye) seems to be a reasonably foreseeable consequence of such negligence. But death does not. Why doesn't the intervening negligence of the doctors (who caused the truly catastrophic injury here) sever Benihana's responsibility for the man's death?
You said Benihanna is on the hook assuming all elements of negligence are satisfied. Well, proximate cause is an element of negligence and I would say it's not satisfied here but I acknowledge that causation is always a tough call. This seems to reach the level of "but for" causation and stop there.

I also disagree with your assumtion of risk analysis since people going to a Benihanna's expect the chef's to fling food around. That's what they do. I think patron's assume the risk that some food may be accidently flung their way. From what I understood about this case, however, the allegation was that the chef deliberately flung the shrimp at him so the point is moot. I agree that people don't expect the food to be deliberately thrown at them.

I don't have the time to respond to your strict liability comment more than to say that I firmly believe strict liability couldn't be applied here under New York law.
1.13.2006 2:45pm
Bex:
Actually, since it appears the chef did intend to fling the bug at the deceased, the case reminds me more of Vosburg v. Putney (the good ole eggshell skull (knee) case).

Poor, lame Vosburg, always second fiddle to Ms. Palsgraf.
1.13.2006 2:50pm
jallgor (mail):
I thought I read somewhere that the McDonald's suit was both about the temperature of the coffee and the fact that they handed the woman a bag at the drive threw that was wet at the bottom and it broke open and dumped the coffe in her lap which is how she got the serious burns where she got them.

Has anyone else ever heard those facts. I can't remember where I heard/read it and I couldn't find it on the net.
1.13.2006 2:51pm
Mark Eckenwiler:
The problem with analogizing this to Palsgraf is that shrimp have shells, not scales.
1.13.2006 2:52pm
Chris S.:
First, sepsis is not necessarily negligence-induced.

Second, it's actually not uncommon for food to be tossed at the patrons at these establishments, though I do not know the specifics of this restaurant or situation. I would analogize this to a ballplayer who tosses a ball to a child in the seats, but where the child's father ducks out of the way instead of catching it. There was little evidence of actual likelihood of harm, the action is regularly undertaken (usually to the delight of patrons), but the outcome turns out to be very bad.

Proceed to poke holes.
1.13.2006 2:54pm
jallgor (mail):
Bex:
I thought of the "eggshell plaintiff" theory but it doesn't apply here. Under that theory, you are responsible for any injury that is directly caused by your negligent action even if the extent of the injury seems out of line with what you did. Proximate cause still has to be shown. Another example is the small car accident that shocks a predisposed person to have a schitzophrenic break with reality. You are still resp. for their more severe injuries because the small car accident proximately caused the harm.
This case is more like a small car accident that results in someone being taken away in an ambulance. The ambulance then gets into a much bigger accident and kills the person. Is the big accident the proximate cause of the smaller accident? Maybe maybe not but it's a different issue than the egg shell plaintiff question.
1.13.2006 3:00pm
Edward A. Hoffman (mail):
When I've eaten at Benihana and similar restaurants I've always seen the chefs gesture to the customer before tossing any food so that the customer knows what is coming, and then wait for the customer to signal that he's ready before proceeding. They don't just fling food around at random, and customers should never be caught unaware by something hurtling towards them.

Jallgor: The person at fault for an injury is liable for any further harm unintentionally caused by health care providers in the course of treating the injury, since his misconduct is what made their services necessary in the first place.
1.13.2006 3:01pm
SDOH:
I'm not taking a position on this issue; but I've heard that in NY a negligent driver who causes the victim to be taken to the hospital (e.g. broken arm) is liable for injuries caused by the negligence of the doctor (e.g. infection requiring amputation.) (i.e. no break in the chain of proximate causation.) No cite, I just remember hearing this.
1.13.2006 3:12pm
Willard:
I feel like everyone here has forgotten what Palsgraf is really about. In Palsgraf, the point was that the plaintiff was not within the scope of people to whom the defendant owed the duty that was breached (i.e., even if pushing someone onto a train is negligent, it isn't negligent vis-a-vis someone standing on the platform). To hold otherwise, says Cardozo, is to eliminate the distinction between crime (breach of a duty to society generally) and tort (breach of a duty to the plaintiff).

In this case, it appears that if the chef breached a duty, it was certainly a duty owed to the plaintiff.
1.13.2006 3:14pm
Frank Drackmann (mail):
Thats 1/2 the fun at a ballgame, watching inattentive dolts get nailed with foul balls.
1.13.2006 3:15pm
MikeW (mail):
Colts41,

Let me start by stating that I'm not a lawyer, so this is going to be based on a layman's viewpoint.
Your citing of athletic events is interesting in one sense. Following the death of the 12-year old girl who was struck by a puck at a Cloumbus (NHL) hockey game a few years back, at least all minor league hockey leagues required their teams to place netting around the ends of the rinks (from the tops of the boards to a point well above them such that a deflected puck would not go into the crowd (never mind the fact that just as many, if not more, pucks went over the side boards). Hockey purists (fans) hate this with a passion as you canot get a clear view of the action (despite the fact that it is netting, it really does hinder the view of the rink and action. Some may just say to move to the sides of the rink, but the view is absolutely not at all the same (my opinion is that it's very poor).
Now, despite the fact that every fan at a hockey game should inherently understand that flying pucks coming off of sticks are traveling at a high rate of speed and that they are just as inherently a danger, this girl was hit. That is why announcements are always made about this and fans are cautioned to always be alert to the action on the ice. Further, there is a warning on the backs of all such game tickets that informs the customer about this and that the team and arena owners cannot be held liable for injuries caused by flying pucks. As I have commented numerous times to team management, there should be no requirement for the netting if the announcements and the information on the tickets are the truth under law and normal practice. Otherwise, this is fruitless.
However, the responses from team management have specifically specified that their insurance rates would be at least triple what they were paying if they didn't put up the nets. From what I gather, this is an indication that some lawyer will still take the team to court and claim that the mere existence of the warnings and announcements is a predetermined admission of liability - at least without some measure of protection such as the nets. Further, it panders to our current societal mantra that we are all victims of something or other.
Oh yes, it seems I recollect that the true cause of the girl's death was an issue about lack of timeliness of getting medical care. This was because her parents didn't take her for care until some significant time delay -- allowing an internal injury to go untreated soon enough when it would have prevented the death. I undrstand that th puck strike contributed to this, but just how liable (if at all) should the team be given the warnings, etc. I don't believe that we should bring litigation at all when we are aware of such things and when we have vountarily put ourselves in such situations. I also agree with others who state that the action precipitating this in Benihanas is part of the entertainment, as it is in all Japanese steak houses. Interestingly, one might also wonder what potential unknown medical issue may have been preexisting with the unfortunate man. As to the McDonald's cae, I have no sympathy in that I feel that the lady was responsible for putting the cup between her legs as she drove away. That alone absolves the vendor, because she is the actual cause of the accidental spilling. One usually (other than some in the Northeast) likes one's coffee hot and expects it to be so when it is purchased. Sorry about the length here, but I don't believe in such lawsuits, based on what I've already said (and knowing I haven't looked at trial evidence and transcripts).
1.13.2006 3:15pm
jallgor (mail):
Edward:
Are citing that rule as what the case law in New York has established? If so, you may be correct about the state of the law in New York (It's somethig I would have to reasearch).
I personally think the what you described is "but for" causation ("but for" the Benihana chef he wouldn't have needed the surgery) which usually isn't enough to prove negligence.
If NY courts came down otherwise I would say its a bad call but obvioulsy it's always a judgment call with proximate cause.
1.13.2006 3:17pm
Donald (www):
Edward H.: While assumption of risk does not enter into an intentional torts analysis, consent does.

I'm not reminded of Palsgraf by this case so much as I am Hackbart v. Cincinnati Bengals: Was the chief doing something that was outside of Benihana's "rules"? Or was the shrimp-throwing part of what the patron consented to when he walked in the door?

I will now go back to blacking out all memory of 1L torts....
1.13.2006 3:18pm
James Dillon (mail):
Edward A. Hoffman writes:
The ballgame analogy misses an important point -- the Benihana chef allegedly tossed the shrimp at Colaitis intentionally, but ballplayers rarely try to hit spectators. The assumption-of-the-risk defense does not apply to intentional torts.


But one can consent to a battery, right? Does patronage of a dining establishment known for flinging food at guests constitute implied consent to having a shrimp flung at oneself?

Probably not, if, as the AP article suggests, the deceased had previously asked the chef not to throw shrimp at him. ("Benihana lawyer Charles Connick said it was unlikely a chef who works for tips would toss food at customers after being asked not to, as Ferenzo claimed.") Surely an explicit request to stop throwing shrimp would revoke any consent implied by the act of entering the restaurant.

However, the article also states that this is a wrongful death action, which I believe is a negligence tort rather than an intentional one, regardless of whether there might also be a case for battery.
1.13.2006 3:23pm
DNL (mail):
I'm more interested in his wife.

It appears that she is from the Beatles's song.

You know, "The girl with Colaitis goes by."
1.13.2006 3:29pm
SagansCosmos (mail):
Imagine how Supreme Court nominee Samuel Alito would reply to being asked how he would apply the law in this case.

I would first have to know the specific law that applies within the applicable jurisdiction and have all the facts of the case before me before I ventured an opinion on this matter. (followed by a lecture on the vagueries of causation in negligence analysis).
1.13.2006 3:32pm
Gary Leff (mail) (www):
I am not a lawyer, but what I'm wondering is: is death from surgical infection a reasonably foreseeable result of a thrown shrimp?
1.13.2006 3:40pm
Locomotive Breath (mail):
As I recall the McD's hot coffee incident, the woman at the drive-through accepted the hot cup of coffee onto which a lid had been placed by the McD's employee, clamped it between her thighs, took off the lid in order to add sugar or creamer, and then tried to drive off with an open hot coffee clamped between her thighs because the cars behind were honking at her to quit stalling the line.
1.13.2006 4:04pm
18 USC 1030 (mail):
MikeW: often times a cmpany or person will do something they are not REQUIRED to do so as to go beyond the requirements of the law. They put up the netting because it is a good idea. You do take responsibility for injuries incurred if you enter the arena; but that does not preclude the arena from taking reasonable measures to protect you. They are not required to put up the netting, failure to do so would not bring liability for injuries incurred. But, it would bring negative public response, so to keep customers happy and alive so they will continue to pay to watch games, the association required the nets as a self mandated requirement.

I've never been to this particular restaurant, but I have been to other similar Japanese Hibachi restaurants. They always throw food TO you not AT you. I think that is a difference that ought to be considered. This was not the case of the chef throwing a shrimp at the customer. Rather, he threw the shrimp to the customer as part of the show (the reason you pay the ridiculous price for so-so food).

Who knows, maybe he thought he had the guys attention. Maybe, the guy wasn't paying attention and the chef thought he'd be funny and toss the shrimp to get his attention. Was that a good idea? Retrospect says probably not. However, is it reasonable to believe the chef should have forseen the outcome? I would say no. Of course, the question is should he have forseen any negative outcome such as a burn or bruise.

If the answer to this question is yes, then it is plausible to say he was negligent in that he knew there was some risk of injury, did it anyway, and though the harm was far worse than what he anticipated; he still knew there was the risk of injury and threw the shrimp anyway.

As to the doctor, there is no culpability on his part as it goes to the initial neligent act requiring medical care, unless the doctor acted so far beyond what is expected of a doctor that it was blatant misconduct. If the doctor decided to operate using an old rusty knife he found in the parking lot, for example, he would be responsible, not the shrimp flinging chef.

In all, I don't think you can hold the chef negligent, seems a but far-fetched. It seems to me that the problem is that people are unwilling to accept the explanation: "it was an accident." Accident means just that, unintended. No one intended this guy to get hurt, it was an unfortunate fluke occurance. Should the restaurant change their showmanship? Maybe, but not because they are culpable; but rather, because, just as for the hockey arenas keeping the customers happy, safe, and alive makes for happy customers who come back and allow you to make money. I have sympathy for the family, but I am not convinced sympathy equates to Tort. I can understand why they would be upset but that does not mean the chef is personally responsible.
1.13.2006 4:17pm
Jerry Mimsy (www):
Locomotive Breath: You recall wrong. She wasn't the driver. The coffee spilled when she removed the lid. At the temperature McDonald's was asked several times not to keep their coffee at (and which was a good 30-40 degrees above most other restaurants), a spill would cause a serious burn in just a few seconds.
1.13.2006 4:19pm
anonymous coward:
I wonder if conservatives just tend to prefer their coffee outrageously hot--one of those cultural indicators, like driving a hybrid or listening to country music.

Certainly I've spilled just-served coffee on my effete yuppie lap but have never needed to seek medical attention for third degree burns. (I believe coffee as hot as in the McD's case is rarely served, in either red or blue-flavored America.)
1.13.2006 4:24pm
steveh2 (mail):
Re anonymous coward, I don't think coffee that hot is ever served anymore, precisely because of that lawsuit, and others like it. In other words, the system worked.

So for the people still ridiculing the decision based on insurance company propaganda, the next time you spill your restaurant coffee and DON'T get third-degree burns from it, thank the tort system.
1.13.2006 4:32pm
JosephSlater (mail):
Locomotive Breath: I dig Tull, but you have the facts wrong on the McDonalds case, as others have noted.

Mark Eckewiler, Eric Muller, and DNC, thanks for the chuckles.

Jallgor, Edward is right. While I don't have any NY cites in front of me, it's pretty well established that even if the act were merely negligent, negligent medical care is generally considered "foreseeable" for prox. cause purposes from a result of negligently caused harms. And the egg-shell plaintiff rule does the rest.

That's all assuming, of course, the act was tortious in the first place. One would want to know more facts. If the facts were that the customer really did say "don't throw shrimp at me," at the chef really did intentionally throw a shrimp at the customer, then plaintiff's case is far from frivolous. It is a tough case for defendant on the facts, because this illustrates the most extreme ways a couple of different rules can break in favor of a party.
1.13.2006 4:37pm
Inspector Callahan (mail):
I know that lawyers outnumber the rest of us on this blog by 99-1, but will the lawyers here please put the law books down for a minute, and look at the lack of COMMON SENSE regarding this suit?

These were my (non-lawyer) reactions: Why draw the line at the restaurant's action? Why didn't the man try to catch, or just get hit with, the shrimp? Why did he choose that restaurant? Why did he even GO to a restaurant that day?

Any of these things avoided would have saved his life. Or not. Who knows? Maybe if he'd gone in the opposite direction to the Ruby Tuesday, he'd have gotten into a car accident and died earlier. We don't know.

But now, those of us who WANT the fun of getting shrimp thrown at us, won't be able to experience it. Why? Lawsuits like these which will cause (if won) Benihana to pay $10 million to this man's family, and decide it isn't worth it to keep up this tradition.

THIS is why the common person doesn't always identify with lawyers. I just read through 33 comments mostly justifying this case, and the McDonald's case, which is another laugh. Don't be surprised if this kind of talk elicits a negative reaction from those of us who aren't lawyers.

Just some food for thought.

TV (Harry)
1.13.2006 4:38pm
Inspector Callahan (mail):
I wonder if conservatives just tend to prefer their coffee outrageously hot

AND

I don't think coffee that hot is ever served anymore, precisely because of that lawsuit

Maybe conservatives or liberals DO prefer their coffee hot. And what is "outrageously"? Do lawyers get to decide what that word means?

Thanks for being the arbiters of what temperature of coffee we're allowed to purchase. Whatever happened to "Caveat Emptor", anyway?

TV (Harry)
1.13.2006 4:44pm
TomH (mail):
Just for reference, in New York a Defendant in a personal injury action is liable for past and future pain and suffering associated with medical malpractice that occurred subsequent to accident; medical malpractice was foreseeable consequence of tortious conduct.

Nelson v. 1683 Unico, Inc., 668 N.Y.S.2d 375
N.Y.A.D. 1 Dept.,1998
1.13.2006 4:45pm
TomH (mail):
Oh, and for the record I do not agree that there is a good alwsuit here. The reasonable person would not anticipate any injury from a thrown shrimp, eye injury, burn or otherwise. Otherwise, one could be sued for waving at a passing acquaintance, who may turn to look too quickly and end up with the same result. Or making a loud noise or any number of otehr startling things we all have to live with.

Sometimes an accident is just an accident.
1.13.2006 4:52pm
JosephSlater (mail):
Inspector Callahan:

Actually, lawyers and law profs think about the real world common sense implications of these sorts of suits all the time. Sometimes, rules that have justification in the majority of cases (like the "egg shell plaintiff" rule) can have tough results for one party or another in particular cases. And that gets to the issue of how much law should have strict (but simple to understand) rules and how many exceptions we want to build into the law (which might get fairer results in some cases, but would make the law less predictable and harder to understand). That's what's going on here. Nobody on this blog has said, "ha, that evil chef (and his employer) are going to get what they have coming to them."

Beyond that, I would strongly urge you to do a bit of research and learn what actually happened in the McDonalds case. The facts are routinely misprepresented for partisan purposes.
1.13.2006 4:56pm
Bex:
jallgor: Absolutely, causation would have to be proven. My point in raising Vosburg as the appropriate analogy was that in intentional torts (and it is certainly debateable whether this would be an intentional tort), causation is the only question, not the foreseeability / zone of danger analysis of Palsgraf. Perhaps the Benihana chef is akin to the hypothetical youths playing at recess, who would have been excused by the Vosburg court, unlike the vicious miscreant who chose to level his kick in the classroom.
1.13.2006 4:59pm
steveh2 (mail):
It was a jury that decided that 170 degrees was outrageously hot, when faced with evidence that everyone else served their coffee at 130-140 degrees, which was not hot enough to cause third degree burns.

Re caveat emptor, when it comes to food served at restaurants, I think that went out the window centuries ago.

If she was given a choice between "hot" coffee and "hot enough to cause third degree burns if you spill it" coffee, and she chose the latter, then caveat emptor would probably apply. But I don't think McDonalds was in the practice of telling its customers that their coffee was hot enough to cause those kinds of injuries.

This wasn't an "Oh, crap, that hurts" kind of spill. This was a spill that caused over $100K in medical expenses.

If having to deal with arguments and reasoning draws a "negative reaction," then I apologize.
1.13.2006 5:00pm
Jon Rowe (mail) (www):
"Palsgraf All Over Again:"

Exactly what I thought when I read it.
1.13.2006 5:09pm
Edward A. Hoffman (mail):
I want to make several points, not all of which reply to what others have said about my prior posts.

Jailgor said:
Edward:
Are citing that rule as what the case law in New York has established? If so, you may be correct about the state of the law in New York (It's somethig I would have to reasearch).
I personally think the what you described is "but for" causation ("but for" the Benihana chef he wouldn't have needed the surgery) which usually isn't enough to prove negligence.
If NY courts came down otherwise I would say its a bad call but obvioulsy it's always a judgment call with proximate cause.
I never said anything about New York law in particular; SDOH was the one who brought it up. The rule making tortfeasors liable for injuries arising from treatment of the original injury is quite old and I believe every American jurisdiction recognizes it.

You're right that causation does not prove negligence; I never said that it does. But it is an element of negligence, and the rule I described simply set some of the limits of legal causation.

Donald said:
Edward H.: While assumption of risk does not enter into an intentional torts analysis, consent does.

I'm not reminded of Palsgraf by this case so much as I am Hackbart v. Cincinnati Bengals: Was the chief doing something that was outside of Benihana's "rules"? Or was the shrimp-throwing part of what the patron consented to when he walked in the door?
Quite true. But walking into a teppanyaki restaurant does not imply consent to whatever the employees might do there. The first time I went to one I was quite surprised to see the chef toss food across the table and into a customer's mouth, and someone who walks in without knowing that chefs sometimes do this cannot possibly have consented to it. Besides, as I mentioned before, the chefs I have seen never did this until the customer signaled that it was OK and that he/she was ready.

James Dillon said:
[T]he article also states that this is a wrongful death action, which I believe is a negligence tort rather than an intentional one, regardless of whether there might also be a case for battery.
Wrongful death actions can involve either negligent or intentional torts.

Inspector Callahan said:
But now, those of us who WANT the fun of getting shrimp thrown at us, won't be able to experience it. Why? Lawsuits like these which will cause (if won) Benihana to pay $10 million to this man's family, and decide it isn't worth it to keep up this tradition.
Not so. A lawsuit like this will only dissuade chefs from tossing food at customers who have already asked them not to, and perhaps to those who have neither consented nor refused. I see no problem with such a rule. After all, the chef's actions amounted to an assault and would have been a battery had Colaitis been hit; a rule that dissuades chefs from assaulting and battering their customers sounds good to me. (I'd feel differently about dissuading chefs from salting and battering their shrimp, but that's tempura and not teppanyaki.) Such a rule will not interfere with the dining experience of customers who do want this type of service, since they can still consent to it.

He also said:
Thanks for being the arbiters of what temperature of coffee we're allowed to purchase. Whatever happened to "Caveat Emptor", anyway?
Tort law strives to do away with caveat emptor. And you should be glad that it does every time your food doesn't poison your kids, your car doesn't explode, your computer doesn't electrocute you, etc. And if you think it is unreasonable to say coffee should not be hot enough to cause third-degree burns then I don't think we can discuss the issue rationally.
1.13.2006 5:13pm
SDOH:

I never said anything about New York law in particular; SDOH was the one who brought it up.

Just to be clear, I brought up (what I heard to be) NY law on proximate causation. Pallsgraph, as an illustration of proximate causation, wouldn't be applicable to this situation.

I was also thinking that this case turns on duty of care.
1.13.2006 5:19pm
JosephSlater (mail):
"I'd feel differently about dissuading chefs from salting and battering their shrimp, but that's tempura and not teppanyaki."

Excellent. As was the substance of your post.
1.13.2006 5:23pm
SDOH:

A lawsuit like this will only dissuade chefs from tossing food at customers who have already asked them not to, and perhaps to those who have neither consented nor refused

If the customer asked the chef not to throw shrimp at him, and then the chef threw the shrimp, that seems sufficient for battery or tortious assault (if it missed) to go to the jury.

That's an easier case, I think, than a negligence action. (Didn't say anything one way or the other to other to the chef; and assuming no intentional tort because a tossed shrimp would not be tortiously offensive to the average person coming to Benihana's.) It's hard to see how tossing a shrimp at someone would foreseeably cause injury, even if it's hot (i.e. typical temperature for Benihana).
1.13.2006 5:33pm
James Dillon (mail):
Edward,

Excellent points, and I feel like an idiot for saying "battery" and not "assault" in my first post, since the shrimp didn't actually hit him. It's been a while since 1L Torts.

I would add to the other responses to Inspector Callahan that no one really expects this case to be worth $10 million, even if the plaintiff "wins." I'm not a personal injury lawyer, but if I were representing the plaintiffs here I think I'd be happy to settle for $100,000. It's also worth pointing out to Inspector Callahan and others who have raised the "common sense" issue that the law allows for the reduction of damages due to the victim's comparative negligence. That is, if the jury found that the decedent was partially responsible for his own injury (perhaps because he overreacted to the shrimp being thrown, or should have been paying more attention, etc.), it can reduce the damage award by an amount proportionate to the plaintiff's culpability. I agree with Edward that a legal rule that encourages chefs to observe a reasonable standard of care when throwing items of food at customers seems like a good thing.
1.13.2006 5:38pm
George Gregg (mail):
Agree with JosephSlater, that was a great comment, Edward.

*golf clap*
1.13.2006 5:55pm
MikeW (mail):
18 USC,
Thanks for your reply. Interesting info, but if the issue was to safeguard the patrons at the hockey games, then logic would indicate that the netting should have gone around the entire rink (Columbus example - girl sat on side of rink, not the end), not just the ends. Remember that I stated - based by the way on more than 30 years of attendance at hockey games - that just as many, if not more, pucks enter the stands over the side boards, which are lower than the end boards. The only possible caveat to putting them around the sides is that the puck going over the side boards might possibly be moving at a slower rate of speed - passes versus shots on goal, for instance. However, these nets were never in place prior to the incident cited, and were clearly a kneejerk reaction by the leagues and insurance companies to this incident. Again, this makes no sense if, as the tickets state, and as you have indicated, the team couldn't be sued based on the verbal warnings and the warnings on the tickets - as long as the law supports that those warnings are sufficient. My position is that there should neither be allowance for a criminal nor a civil suit in such a case. Also, as I stated I believe this all is a reflection on how litigious our sciety has become and that is in many ways grounded in the victim mentality that has become so prevalent. I have long maintained (just my opinion) that if "frivolous" lawsuits are brought into court (let's say given the warnings at the hockey rink and an ensuing injury - or even death - due to getting hit by a puck), judges should have the authority to deal with them in a way so as to make the lawyer representing the "aggrieved" to pay a substantial penalty. Just my thought...
1.13.2006 5:58pm
margate (mail):
This is precisely why I don't eat shell fish.

Too dangerous.
1.13.2006 5:59pm
TLove (mail):

Edward A. Hoffman:

A lawsuit like this will only dissuade chefs from tossing food at customers who have already asked them not to, and perhaps to those who have neither consented nor refused. I see no problem with such a rule.


I do. No real world american business the size of Benihana works this way. Benihana has no doubt already received expensively researched, expensively drafted, and expensively reviewed (think around $50k) from its corporate firm recommending that this practice immediately halt. Probably includes a kitchen sink litany of OSHA style recommendations such as the plexiglass screen protectors between the chefs and the patrons.

The usualy imaginative butt-covering advice that both in-house counsel and outside counsel believe they are being asked for, imposed by intimidated non-lawyer managers on the wait staff.

There is no way Benihana is going to allow chefs to make fine legal distinctions regarding consent that judges and juries years and many hundreds of thousands of dollars later get to say "oopsie" about.

That was it for fun at Benihana. Hell, I tell them "go whole hog - put the chefs in the kitchen in front of a video camera, put a big LCD monitor over the now permanently cold hibatchi stoves, and have the chefs fling shripm at the video camera. Virtual fun.
1.13.2006 6:00pm
JosephSlater (mail):
TLove:

Gee, all that before we even know the result of this case?

Also, while I don't disagree that sometimes folks over-react for fear of liability, I think your scenario is a tad extreme. McDonalds still serves hot coffee, after all.

Finally, to the extent there is over-reaction, I would put at least some of the blame on the PR arm of corporate America and the "tort reform" folks. They have invested a lot of time and effort in distorting how the legal system works (see their mis-descriptions of cases like the McDonalds case, faithfully repeated in threads like this one). So now people THINK the tort system is wildly more pro-plaintiff than it actually is.
1.13.2006 6:14pm
James Dillon (mail):
TLove,

Don't you think that Benihana's response will be based on a more nuanced cost-benefit analysis, which balances the economic value of the chefs' showmanship (many people have attested here that this is one of the primary reasons why customers visit the restaurant anyway) against the potential damages arising from incidents of this sort? Based on what little I know about the restaurant's business model and practices, it seems that a more rational response would be to impose a simple rule on chefs: "If a customer asks you not to throw shrimp at them, don't do it," while generally maintaining the gimmick that is bringing customers in the door. I'm sure their business advisors are sophisticated enough to realize that an unduly risk-averse policy would unnecessarily reduce profits, as customers go elsewhere when the showmanship is done away with.

To use the favorite example of the day, did McDonald's stop serving coffee after the infamous lawsuit? No, it simply brought its behavior into compliance with the duty of care imposed on it by the law. I see no reason to think that Benihana would act differently.
1.13.2006 6:16pm
VC Reader:

However, the article also states that this is a wrongful death action, which I believe is a negligence tort rather than an intentional one, regardless of whether there might also be a case for battery.

Wrongful death can be either. Battery that ends up killing the victim can be the basis of a wrongful death action.
1.13.2006 6:22pm
TLove (mail):
James Dillon

McDonalds are factories for food. Telling the factory to turn down the coffee machine to 140 f everywhere, all the time, is easy.

Subjective consent issues with chefs that are frequently non-native english speaking individuals? The opportunities misunderstanding and for fraud are too much for even the most naive lawyer to miss: bring six of your fraudster friends, you get the table to yourself, all offer consent, and then one or two dive for the floor writhing in agony - one poor engrish speaking japanse chef versus six native english speaking con artists?.

Add to that the famously courageous commercial underwriters (you want insurance?, ok, go into a NYC subway and buy a token - now serve food the way they serve tokens)...

Memo from HQ: plexiglass shields, no food throwing, no knife twirling.
1.13.2006 6:28pm
SDOH:
Can we all agree that:
(a) If the customer asked for no shrimp to be thrown at him, this is a claim of battery/assault sufficient to go to the jury; and
(b) If nothing was said to the chef and claim is negligence, the issue (under NY law) is duty of care rather than proximate causation.

If the issue is duty of care:
(i) Would a reasonable Benihana chef acting normally (e.g. shrimp at typical temperature, not rifling line-drive shots of shrimp at people's eyes, etc.) foresee that a tossed hot shrimp would cause injury?
(ii) If there is any sort of foreseeable injury, wouldn't a reasonable precaution just be to make sure that the customer sees that the shrimp is coming? (e.g. catch their eye; or make sure that they are looking before you toss the shrimp.)

Assuming the customer was looking at the chef, I think this is a tough case for negligence.
1.13.2006 6:35pm
The Human Fund (mail):
I can't believe no one else enjoyed this pun:


The problem with analogizing this to Palsgraf is that shrimp have shells, not scales.


enough to comment on it.

Or perhaps I just missed it.
1.13.2006 6:40pm
James Dillon (mail):
If we accept that the chef intentionally threw the shrimp, is there room for a negligence analysis at all? Can an injury arising from a consensual intentional tort (or an act that would be an intentional tort in the absence of consent) give rise to negligence liability?

If 1) By entering the restaurant, the customer impliedly consented to having a shrimp thrown at him, 2) Did not revoke that consent by asking the chef not to throw a shrimp at him, and 3) The chef, acting on a reasonable belief that the customer consented, threw a shrimp at the customer which led to the injury, is there any theory on which liability could be based?
1.13.2006 6:44pm
18 USC 1030 (mail):
MikeW: There is no question the nets were a knee jerk response. However, the reasond for them there and not everywhere, I would guess is two-fold. One, the chances are higher that the puck will leave the ice on the ends than the sides because of the nature of the game. Two, as for why they don't require nets everywhere, I would suggest is because we (the fans) don't want our view obstructed. It is part of our risk we take whilst watching the game; we are willing to risk getting hurt to see better. Is it stupid? Yes. Is it true? Perhaps not for everyone, but many take this risk.

As to the reason for which the nets go up, one must remember another can act in a way intended to prevent injury when not required by law. Just because the arena is not liable if you should happen to get knocked out, chances are if you do get knocked out, you aren't coming back, at least not for a while. Perhaps if you do come back you will sit else where in the arena (read cheaper seats). Thus, in order to keep you happy alive, they take this precaution in order, not to assume liability but to mitigate the risk you assume. They are not necessarilly trying to avoid a lawsuit. As I've indicated perhaps not giving them much credit, it could be to ensure you sit in the expensive seats. Or, it could be simply that the association doesn't like seeing people getting hurt. Airbags were in cars before the law mandated them. Why? Because car companies got the idea that if it is publicized people are dying in their car, maybe fewer will sell. Bingo make cars safer. Sure regulations came later, but there are many organizations that institute policies further than the law requires either to ensure they don't get sued, in order to assist in financial status, or perhaps because they are decent human beings.

Still doesn't mean if you are sitting there and get hit the arena is liable. Although, depending on the notice, and whether there is any notice on the netting, one injured sitting where the netting is there could have a lawsuit that by installing netting, the arena assumed the liability. That is a slight danger with providing safety measures, if they fail you may in some cases open yourself up to a lawsuit based on your act to protect.
1.13.2006 6:50pm
Edward A. Hoffman (mail):
TLove:

How subtle do you think the distinction between yes and no really is? In my experience, this is how it works:

1. The chef picks up a piece of food on a spatula (or whatever the correct term may be), makes eye contact with a customer, and then gestures by rapidly moving the spatula a few inches upward.

2. The customer nods yes or no. If he nods no, the chef doesn't proceed. If he nods yes, the chef waits until the customer has opened his mouth. If appropriate, he may gesture for the customer to tilt his head up or down before tossing the food.

3. By this point everyone at the table knows what is about to happen and waits expectantly to see if the toss will be on-target. If the customer catches the morsel everyone applauds. If not, there is a chorus of "awww...".

There are no "fine legal distinctions regarding consent"; it's quite easy to distinguish a customer who has nodded yes and opened his mouth expectantly from one who has not. And since not a word is spoken in the process (it can be pretty hard to hear someone across the table sometimes amidst the applause and awwws from around the room anyway) there are no "issues with chefs that are frequently non-native English speaking individuals".

I agree that there is some overreaction going on, but it isn't coming from the restaurant.


P.S. Thanks to several of you for the kind words. And I, for one, thought Mark Eckenwiler's shells-vs-scales remark was superb.
1.13.2006 6:56pm
Rhadamanthus1982 (mail) (www):
Ah fond memories brought back: Of all the classes to teach this must surely be the easiest: so many anecdotes just lying around waiting to turn the class into a circs!
1.13.2006 7:32pm
George Gregg (mail):
Fascinating analyses. I've just learned five times more about torts and negligence than I knew coming into this thread.

Some of you people here on VC seriously make me want to study law.

But only if there are jokes.
1.13.2006 7:59pm
frankcross (mail):
I know torts but I've learned interesting things too.
1) It is common for restaurants to throw food at people.
2) People actually want shrimp thrown at them.

I never would have guessed.
1.13.2006 8:19pm
Thales (mail) (www):
Re Caveat Emptor. This default rule of contract law is only sometimes a good/just/efficient one sometimes. It makes good sense when the buyer has the opportunity and ability to inspect the goods and discover defects, or dicker over terms, etc, e.g. when buying a shirt or negotiating a mortgage loan. It makes less sense when e.g. the buyer can't look inside a can of soup to see if there are glass chunks in it, or the seller is in a unique position to conceal defects. There caveat venditor may be the better rule.
1.13.2006 8:57pm
JosephSlater (mail):
Just for the record, I said I thought Mark E.'s line was funny in my first post on this thread.
1.13.2006 9:09pm
Thaddeus Pope (mail):
I have been working an on article defending the assumption of risk doctrine and attacking the reasons articulated for its decline and fall. And I just sketched out a footnote to address an example just like this Benihaha case.

A few weeks ago, on the way back from St. Louis, I stopped in rural Missouri to eat at Lambert's, "The Home of Throwed Rolls." http://www.throwedrolls.com/ This is the third time I stopped at this restaurant. As the name suggests, the waiters pass out the rolls by throwing them to diners at their tables. This time I was "hit" by a warm roll. Did I have a tort claim against Lamberts?

Probably not. The idea that the rolls are throwed is pretty central to the whole (fun) idea of eating at Lambert's. It seems that the showmanship at Benihaha is similar -- an intrinsic and known risk of engaging in the activity. (Of course, the facts here might show this particular chef on this particular night went way beyond the showmanship of the typical chef.)
1.13.2006 11:39pm
Brian G (mail) (www):
I didn't think of Palsgraf when I read this. I thought summary judgment and out the door, affirmed on appeal, cert. denied.
1.13.2006 11:40pm
The Franchise (mail):
Human Fund:

My guess is that anyone familiar with LIRR finds little humor in that train of thought.
1.14.2006 1:14am
Edward A. Hoffman (mail):
By the way, Palsgraf is just the most notorious example of cases involving a rule that most tort students have to figure out for themselves: the railroad always loses.
1.14.2006 1:23am
SlimAndSlam:
Edward A. Hoffman:

Uh, in Palsgraf, didn't the railroad... win? I mean, it took two appeals to get there, but Cardozo's final line in the opinion is "... the complaint [should be] dismissed, with costs in all courts." That seems inconsistent with the general rule you articulated.

It seems ironic, in light of the pro-plaintiff reputation that the field of torts has, that the most famous torts case of all was a clear win for the defendant.

(Why yes, I did have my 1L Torts casebook within arm's reach when reading this thread, thanks for asking.)
1.14.2006 7:21am
JosephSlater (mail):
Actually, the better way to understand a good chunk of torts law through the late 19th century and even into the early 20th was "The railroad always wins." Indeed, there's a line of legal history that argues that the decline of traditional tort law, which looked a lot more like strict liability, and the rise of negligence (including its complete defenses, like contributory negligence), came at least in part to help railroads and other "infant industries" that were in fact causing quite a lot of harm -- harm for which they would have been liable under older tort rules, but not under the new regime.

Plus, I've been waiting for somebody to point out that plaintiff LOST in Palsgraf. It's a great proximate cause/duty owed case, and E.V. is right that this restaurant case has some interesting prox. cause issues too. But I'm amazed at how many people are willing to scream "the system is out of control in its bias toward plaintiffs" when (i) plaintiff lost in Palsgraf and (ii) there is no decision in the restaurant case.
1.14.2006 10:27am
MikeW (mail):
18 USC,

I understand your point, and I'm not disputing that the organization can take such actions even in the abence of a law requiring it (which is absolutely not necessary either). My point essentialy had to do with what othrs have called the assumption of risk doctrine. I believe, however, that in circumstances such as Benihana and my hockey example, the law should simply prohibit any lawsuits. Effectively, the law should recognize that individuals should take responsibility for voluntarily placing themselves in these situations and cannot and should not be able to capitalize on these circumstances when hit by a puck or even the Benihana "show" - knowing that these activities are part of the resulting experience.

As to the issue, though, of a lawsuit, remember that I was told that their insurance rates would be triple what they were. Why would that be unless their insurer was convinced that they could be successfully sued - which would in essence mean that the warnings were moot? That piece escapes me. Unless the insurance company was just looking to make a windfall. I would, of course, think that the team's legal representatives would be able to help the team in that argument.

Your final point in the last post reinforces my point about the lawyers creating something from this. Again, this smacks of a "we'll take you to court, because you knew it was so inherently dangerous that you put up protective measures that, in turn, had a failure. We don't care if this was the only time. One failure is too many, and, again, you knew this was ingherently dangerous, no, didn't you?"

By the way, I (and many others, too) was a season ticket holder and had been for 5 years - since the introduction of a team in that city), management knew it (which was why they "heard" me, a known commodity). At least 90% of the regulars sitting in this area complained to management about this, to no avail. I do not believe in any way that there was any magnanimous desire to protect me and keep me coming back as a customer. The truth, as I could see on their faces in our discussion, was that they were driven to it by the precipitating issue of the Columbus game and aftermath. This brings me back to my point that people need to accept responsibility for their actions, their voluntary participation in such activities, and lose the victim mentality mantra we've come to in this country.

By the way, I do appreciate this discourse. Sometimes, as I'm sure you can see in my posts, it's a good way to vent a little frustration, albeit in a civilized way (I hope). Thanks all, and great takes on so many facets of this issue.
1.14.2006 12:08pm
Edward A. Hoffman (mail):
SlimAndSlam is right, of course. That's what I get for posting at the end of a long day. Many cases covered in a typical torts class involve railroads and the railroad loses in almost every one of them, but Palsgraf is an exception. My bad.
1.14.2006 3:44pm
The Franchise (mail):
Dear Mr. Hoffman:

Light years ago the LIRR rarely lost a case. Unless the driver decided to detour or tried a mind meld with the train ahead of him, the Railroad was King. In fact their arrogance was such that they regularly sued the estate of suicide vics for the cost of clean-up to the locomotive.
1.14.2006 4:41pm
Sonofagun (mail):
Re: "If we accept that the chef intentionally threw the shrimp, is there room for a negligence analysis at all? Can an injury arising from a consensual intentional tort (or an act that would be an intentional tort in the absence of consent) give rise to negligence liability?"

I dont think that there is anything that would keep the plaintiffs from pursuing more than one theory - i.e. assault AND negligence. Even if they only puruse the negligence theory, "the presence of an intent to do an act does not preclude negligence. The concepts of negligence and battery are not mutually exclusive" Ghassemieh v. Schafer, 447 A.2d 84. "We see no reason why an intentional act that produces unitended consequeneces cannot be a foundation for a negligence action." Id.

I think the essential point is that intent and negligence and just two points on a continuum of the actor's certainly of the likelihood of the occurrence of a particular outcome. It's certainly not logical to hold someone liable for an act where he (negligently) failed to perceive the risk of an certain outcome while absolving an actor engaging in the same activity and is substantially certain or desirous of the same outcome.
1.14.2006 10:25pm
Mark Eckenwiler:
JosephSlater observes that the better way to understand a good chunk of torts law through the late 19th century and even into the early 20th was "The railroad always wins."

Indeed, the coincidence is positively Erie.
1.15.2006 11:05am
SDOH:

"If we accept that the chef intentionally threw the shrimp, is there room for a negligence analysis at all? Can an injury arising from a consensual intentional tort (or an act that would be an intentional tort in the absence of consent) give rise to negligence liability?"

Previously I wrote that the claim options were (a) Battery/Assault if the customer asked not to have shrimp tossed at him (a claim I thought sufficient to go to the jury); and (b) Negligence if the duty of care was violated when tossing the shrimp. (a claim I thought insufficient to go to the jury if the customer was looking at the chef when the shrimp was tossed.)

Option (c), which Dillan and Hoffman might (?) be alluding to, is a an assault/battery claim where the customer said nothing to the chef. I had ignored option (c), on the assumption that a typical Benihana customer would not find a tossed shrimp tortiously offensive. Although I'm not good with judge/jury distinctions; the factual question of what a typical Benihana customer would find offensive is probably a question for the jury. (Albeit one that I think the defense attorney should have little trouble winning.)
1.15.2006 2:06pm
Edward A. Hoffman (mail):
Whether a particular contact is harmful or offensive is decided objectively rather than subjectively. The test is not how this particular plaintiff viewed it but rather how the average reasonable person in his shoes would have viewed it. Contrary to what SDOH says, I think most people would be offended by having anything thrown at them, including a hot shrimp.

SDOH's general analysis is generally good but a bit off the mark, since negligence claims by definition have to involve the breach of a duty owed to the plaintiff. If the chef deliberately tossed the shrimp at the customer but neither had nor mistakenly believed he had the customer's consent then the act was an assault. The only way I can see this being a neglicence case is if the chef wasn't aiming for the customer at all -- if he instead was trying to toss it to a different customer but missed, for example, or if he was just trying to flip it and lost control. I think most of us will agree that a hibachi chef owes his patrons a duty not to hit them with hot food.
1.15.2006 2:54pm
SDOH:

The test is not how this particular plaintiff viewed it but rather how the average reasonable person in his shoes would have viewed it. Contrary to what SDOH says, I think most people would be offended by having anything thrown at them, including a hot shrimp.

Because the objective assault/battery test inquiries into a typical customer in the plaintiff's shoes, don't we have to look at the typical Benihana customer? I would agree that this would be tortiously offensive to a typical customer at the Applebee's, but to a typical Benihana customer? And if that is the case, don't we have to go on public information concerning known and accepted by the typical Benihana customer? I'm not sure that there has to be "consent" as a defense to an otherwise tortious act, if there was no tortious act to begin with.
1.15.2006 3:18pm
SDOH:
As an addedum: I would think that there is a distinction between rude behavior, and behavior that is tortiously offensive; and that even if the Benihana chef acted rudely by not explicitly asking permissing from the individual, it wouldn't be tortiously offensive to a typical Benihana customer.
1.15.2006 3:23pm
SDOH:

Whether a particular contact is harmful or offensive is decided objectively rather than subjectively.

(honest question): Would you dispose of the case on summary judgment (assault/battery) in favor of the plaintiff, if the parties stipulated that the customer didn't ask the chef to not toss the shrimp, and the chef didn't explicitly seek permission from the individual customer?
1.15.2006 3:28pm
SDOH:

The only way I can see this being a neglicence case is if the chef wasn't aiming for the customer at all -- if he instead was trying to toss it to a different customer but missed, for example, or if he was just trying to flip it and lost control.

I don't think that negligence depends on the absence of the intent to do the action. I could see a negligence claim if the chef intended to toss the shrimp at the customer, yet negligently failed to take reasonable precautions (e.g. make sure the customer is looking)to ensure that this intentional act did not result in a foreseeable injury (e.g. shrimp in the eye.)
1.15.2006 4:14pm
JosephSlater (mail):
But the analysis for negligence and intentional torts would down to the same issue: whether the chef reasonably believed there was the patron had agreed to take part in this sort of activity. If not, then it's a assault (puts patron in reasonable apprehension of offensive touching). But if so, there's a successful consent defense. Similarly, under negligence, a reasonaby prudent person doesn't toss shrimp at people, ducking is foreseeable, a twisted neck is foreseeable, and negligent medical treatment is foreseeable. But if so, the chef has a successful assumption of the risk defense.
1.15.2006 4:36pm
SDOH:

But the analysis for negligence and intentional torts would down to the same issue: whether the chef reasonably believed there was the patron had agreed to take part in this sort of activity


I think the focus would be different because in negligence, the focus is upon the reasonable Benihana chef; whereas in battery/assault, the focus is upon the typical Benihana customer.

I would think that under a negligence inquiry, a chef can both take reasonable precautions to avoid foreseeable injury, and be rude or liable for battery/assault at the same time. To the extent that a neck injury resulting from ducking is foreseeable, a precaution that eliminates this risk of injury to a reasonable degree may just be to make sure that the customer knows/sees that a shrimp is coming, and isn't startled by the toss. If the chef startles the customer, this may be negligent.

Neverthless, the issue wouldn't necessarily be consent - The customer could say "no", and yet the chef could make sure that the customer wasn't startled and wouldn't foreseeably violently duck in such a way as to cause neck injury. In this situation, the chef could be innocent of negligence, yet guilty of assault/battery.



Just to note, as far as the objective assault/battery test, I think that the focus can be on a typical Benihana customer (rather than just a typical food customer), because "Benihana" isn't a subjective characteristic of anybody in the same way as height, weight, IQ, etc. It would be like saying that being a "basketball player" is a subjective characteristic of someone, rather than an activity one engages in.
1.15.2006 4:59pm
JosephSlater (mail):
SDOH:

This is an interesting issue, and thanks you took the time to walk through it. I think we only disagree a bit, actually. I think this is an assault case, not negligence. To the extent you think it could be either and there are different tests, you haven't convinced me. I'll try my arguments out on you now (duck if you don't want them!).

You write: I think the focus would be different because in negligence, the focus is upon the reasonable Benihana chef; whereas in battery/assault, the focus is upon the typical Benihana customer.

--I think that, at least in this case, it's the same question, because for either negligence or intentional torts, both sides have to be objectively reasonable.

You write: I would think that under a negligence inquiry, a chef can both take reasonable precautions to avoid foreseeable injury, and be rude or liable for battery/assault at the same time.

--Yes, which may well have been what happened here. The chef would be liable for assault, not negligence.

You write: To the extent that a neck injury resulting from ducking is foreseeable, a precaution that eliminates this risk of injury to a reasonable degree may just be to make sure that the customer knows/sees that a shrimp is coming, and isn't startled by the toss. If the chef startles the customer, this may be negligent.

--I don't this this can be negligence. Even if the chef take precautions to avoid injuring a patron, intentionally tossing a shrimp near the patron, under normal circumstances, is assault, because being hit by a shrimp would be an offensive touching. The question is whether the chef had an objectively reasonable understanding that the patron had consented to this sort of behavior. If the patron had consented, no assault or battery; if the patron hadn't, then whichever intentional tort fits (depending on whether the shrimp made contact). But nothing makes this negligence.

You write: Neverthless, the issue wouldn't necessarily be consent - The customer could say "no", and yet the chef could make sure that the customer wasn't startled and wouldn't foreseeably violently duck in such a way as to cause neck injury. In this situation, the chef could be innocent of negligence, yet guilty of assault/battery.

--But the issue is consent. The reason the chef is liable in your hypo directly above is because of lack of consent.

You write: Just to note, as far as the objective assault/battery test, I think that the focus can be on a typical Benihana customer (rather than just a typical food customer), because "Benihana" isn't a subjective characteristic of anybody in the same way as height, weight, IQ, etc. It would be like saying that being a "basketball player" is a subjective characteristic of someone, rather than an activity one engages in

--I say the focus is still on the Chef, whether he reasonably believed that the customer had agreed to this sort of treatment. If a court found that he did reasonably believe that, he wins under intentional tort theories and he would win if this case were conceived of as negligence, for the same reason.

How the objectively reasonable customer would behave would come up maybe in a comparative negligence defense, but I don't think that defense would come up because I don't think this is a negligence case.
1.15.2006 8:39pm
Edward A. Hoffman (mail):
SDOH seems to believe a typical Benihana customer should expect food to be tossed at him unexpectedly, but this is not how it works. The customer can expect to be asked if he wants the chef to do this and, if he says yes, to have time to prepare. He should not expect food to be tossed at him except under those circumstances. I think almost everyone would be offended by having something thrown at them, even if they know that they might be asked to consent to such an action. The failure to seek consent when such a request is expected makes the incident more offensive than it would be elsewhere, not less.
1.15.2006 9:41pm
SDOH:

intentionally tossing a shrimp near the patron, under normal circumstances, is assault, because being hit by a shrimp would be an offensive touching. The question is whether the chef had an objectively reasonable understanding that the patron had consented to this sort of behavior.


I would agree that, under non-typical Benihana circumstances (e.g. McDonald's), being hit by tossed food can be a tortious assault/battery. I also agree that the issue of consent doesn't arise as a matter of the plaintiff establishing a claim for assault or battery, but rather as an affirmative defense. (i.e. consent to contact that would otherwise be tortious.)


I say the focus is still on the Chef, whether he reasonably believed that the customer had agreed to this sort of treatment. If a court found that he did reasonably believe that, he wins under intentional tort theories and he would win if this case were conceived of as negligence, for the same reason.


Here's the crux, I think.

The affirmative defense of consent to a tort (including assault/battery) may be (I haven't researched) established objectively, from the viewpoint of the belief of a reasonable chef under the circumstances.

However, the issue of "consent," as you're describing it in the plaintiff establishing a negligence claim, is actually the issue of when risks associated with an activity are "reasonable" in proportion to that activity. Risks that are reasonable in relation to playing basketball with other people are not reasonable in relation to riding the subway with other people.

What risks are "reasonable" in dining at Benihana's? The risk-allocating function of tort is served, I think, by inquiring into the kinds of risks are known and commonly accepted when participating in an activity. When one plays basketball, one doesn't "consent" to being injured in the normal course of a game (including being fouled); but one is aware that injury is a risk of playing. Therefore, I think that the plaintiff has to establish that the risks of tossed shrimp were not reduced to a degree that is commonly known and accepted by the typical Benihana customer. I don't think that a Benihana defendant needs to establish actual individual "consent" (even if from his own perspective).

(When I said that a case of negligence might be possible, it was on special non-typical Benihana facts; e.g. Rifling line-drive shots of shrimp at someone's eyes, tossing shrimp out of the blue by suprising, super-heated shrimp, etc. )
1.15.2006 9:51pm
SDOH:

SDOH seems to believe a typical Benihana customer should expect food to be tossed at him unexpectedly, but this is not how it works. The customer can expect to be asked if he wants the chef to do this and, if he says yes, to have time to prepare. He should not expect food to be tossed at him except under those circumstances.

I would agree that if the customer is sitting in his chair, and a peice of shrimp comes flying out of the blue at his face, this can be an assault/battery. I tried to make clear that (under my facts) the chef's toss isn't a suprise the customer. He hasn't explicitly asked the customer for permission, but he's made eye contact, the customer sees that he is about to toss the shrimp, etc. I was thinking of a situation in which everything is normal, there just isn't an actual asking of permission before the toss.


I think almost everyone would be offended by having something thrown at them, even if they know that they might be asked to consent to such an action.

I would agree that, in a situation where there is no express asking of consent, yet the toss isn't out of the blue, one could be offended by what could (reasonably) be considered rude behavior. I just don't think that such a situation is tortiously harmful or offensive, from the viewpoint of the typical Benihana customer. That is to say, rude contact isn't always an assault or battery.
1.15.2006 9:59pm
SDOH:
(typos galore.)
1.15.2006 9:59pm
JosephSlater (mail):
This is good fun.

First, as I understand it, the consent defense in intentional torts *is* based on what the objectively reasonable defendant would have believed plaintiff did and did not consent to.

You write: However, the issue of "consent," as you're describing it in the plaintiff establishing a negligence claim, is actually the issue of when risks associated with an activity are "reasonable" in proportion to that activity. Risks that are reasonable in relation to playing basketball with other people are not reasonable in relation to riding the subway with other people

I would describe that differently: the issue is what plaintiff could reasonably be understood to have consented to. When I play basketball, I have in fact consented to be hit intentionally in certain ways that I haven't consented to normally (or when riding in a subway). In the basketball game, I've also arguably assumed the risk of being hit unintentionally (negligently), although, to muddy the waters further, the more modern approach in negligence-in-sports cases is to say that I've agreed to lower the duty of care that opposing players owe me.

You write: Therefore, I think that the plaintiff has to establish that the risks of tossed shrimp were not reduced to a degree that is commonly known and accepted by the typical Benihana customer. I don't think that a Benihana defendant needs to establish actual individual "consent" (even if from his own perspective).

Well, if defendant *didn't* reduce the risks to normal levels, that might go to some kind of additional, punitive damages, but I still think it's an intentional tort. Also, in such a case, defendant would have a tough time establishing consent, because even if the customer gave the usual "throw the shrimp at me" nod, the customer would be expecting the usual Benihana care, and would not have gotten it. But it's still assault/battery. The defendant's act would exceed the consent given, and the consent to the harmful touching would not be valid (comparison: I say, "let's fence with rubber tips at the ends of our foils, you agree, but unbeknownst to you I remover the tips and injure you during the fencing; I've battered you).

As to line-drive shots of super-heated shrimp, LOL and I'm glad we agree that this case isn't negligence. That was my main original point.
1.15.2006 10:16pm
SDOH:
This is (dorkily) fun.

re: Negligence

When I play basketball, I have in fact consented to be hit intentionally in certain ways that I haven't consented to normally (or when riding in a subway). In the basketball game, I've also arguably assumed the risk of being hit unintentionally (negligently), although, to muddy the waters further, the more modern approach in negligence-in-sports cases is to say that I've agreed to lower the duty of care that opposing players owe me.

I think that one reason that "consent" isn't used in establishing a negligence case is that it easily turns from a metaphor into an evidentiary requirement of actual consent, and negligence affects people who don't have a relationship in which consent can be established. e.g. (I forget the name of the case) Husband enters into a contract to buy a car, and due to negligent manufacturing it wrecks and hurts the wife, who never had an opportunity to consent to anything. There isn't any issue of her consent, but there is an issue of what precautions a manufacturer/seller could take in order to reduce the risks to those typically associated with driving.


But it's still assault/battery. The defendant's act would exceed the consent given, and the consent to the harmful touching would not be valid (comparison: I say, "let's fence with rubber tips at the ends of our foils, you agree, but unbeknownst to you I remover the tips and injure you during the fencing; I've battered you).


I'm sort of muddied on which facts we're operating on at the moment; but if the only difference is whether explicit consent has been asked for and received, I don't think that this is good enough for summary judgment for the plaintiff on an assault/battery claim; and I think that the defendant would have a relatively easy time with the jury. A business can operate on tacit understandings that activities occur that would otherwise be assault/batteries (our chefs regularly toss shrimp to customers, it's part of our schtick), and not all rude contact (our chefs regularly ask individual permission, but this one didn't) is tortiously offensive. When I think of something that is tortiously offensive, I think of something that is exceptionally degrading or humiliating. Rude contact, though "offensive" in everyday parlance, isn't always a tort. I think that this is probably enough to go to a jury, though I don't think that they'll probably win.



and that even if
1.16.2006 11:08am
JosephSlater (mail):
Let me try to narrow the issue. Suppose the jury were to believe that the patron knew or should have known that the restaurant's chefs tossed shrimp (which could be something the jury could reasonably believe, absent proof of explicit denial of consent). In that case, I agree with you (I think) that there would be no battery, because consent can be implied from conduct.

It's just like when I start playing a pick-up game of basketball; my conduct implies, to an objectively reasonable opposing player, that I've consented to certain types of contact, even if I haven't said a word -- and for that matter, even if in my own mind, I subjectively don't want to be fouled. I have no assault, battery, or negligence case, because I've given indications that reasonable defendants would interpret to mean that I've agreed to certain things that otherwise (in other contexts) would be tortious.

As to your car example, I think that's one good justification for why products liability is (even after the Restatement Third), mostly a matter of strict liability, not negligence.
1.16.2006 11:45am
SDOH:
Negligence doesn't look to consent, I think, because the purpose of tort isn't to ensure that all risky relationships are regulated by consent. If so, it would presumably extend to all situations that imposed risks, even if they didn't result in costs. However, tort requires injury. Moreover, one's right to engage in the risk-imposing activity (e.g. playing basketball, driving) usually isn't contingent upon the permission of those are exposed to the risks of this activity.

Rather, in the absence of tort law, the costs of risk are borne by the victim; and the primary purpose of tort is simply to shift these costs to the party who can best do the cost/benefit analysis, ensuring an efficient amount of risk. This is a different question from objectively consensual relationships, although the evidence that may establish one may also establish the other.
1.16.2006 12:38pm
SDOH:
"the primary purpose of negligence is..."
1.16.2006 12:45pm
JosephSlater (mail):
I think negligence *does* look at consent, either through the assumption of risk doctrine, or the more modern you-agreed-to-lower-my-duty-of-care-to-you-in-this-context doctrine. It's basically the "you agreed to let me do what would otherwise be tortious" idea, whether it's slapping at my hands as I drive the lane (thus denying me the rim-rattling dunk of my fantasies) or throwing a shrimp at me.
1.16.2006 1:30pm