Palsgraf Loses Again:

The jury has ruled in Benihana's favor in the killer shrimp lawsuit:

A Benihana chef may have tossed a hot shrimp at a customer five years ago, but a Nassau jury decided yesterday it's not the restaurant's fault the man wrenched his neck that night and later died.

It took the jury less than two hours to decide that Benihana, a Japanese restaurant chain famous for its theatrical table-side food preparation, was not responsible for the death of Jerry Colaitis, 47, of Old Brookville. . . .

UPDATE: Thanks to Jim Lindgren and Joe Zwers for giving me the correct cite.

Related Posts (on one page):

  1. Palsgraf Loses Again:
  2. Palsgraf All Over Again:
Pius XXX:
Prof: Where are you quoting from? There's no link.
2.10.2006 2:34pm
DNL (mail):
Eugene, can you provide a link to the full article?
2.10.2006 2:34pm
Joe Zwers (mail):
Here's the link, its from the Long Island section of Newsday ( case the full link doesn't work.
2.10.2006 3:09pm
James Lindgren (mail):

When I first read the story, I saw that the link was wrong, but it took only a few seconds to find the story.

Here was your original Newsday story:


I got it by putting the first sentence you quoted into Google, and then switching to (Google) "News."

Jim Lindgren
2.10.2006 3:12pm
nk (mail) (www):
"Viewed in retrospect it was not unforeseeable ... ." Scream! Why does not modern tort law violate the Ex Post Facto Clause?
2.10.2006 3:21pm
JosephSlater (mail):
So the jury ruled, essentially, that there was at least apparent consent: the chef, under the circumstances, reasonably understood that the diner had consented to flung shrimp. Given that finding of fact, that's the correct result.

I hope that all the posters in the previous thread who were claiming that tort law had lost any connection to fairness or reality will note the actual disposition of this case.
2.10.2006 4:05pm
The Human Fund (mail):
I think one could still make the argument that the judge in this case has lost some connection to fairness or reality, in asmuch as he let the thing go to trial in the first place.

I don't know enough about the details of the case to know whether I buy that argument or not.
2.10.2006 4:10pm
I thought the discussion in the earlier thread was remarkably good, and suprisingly free of the typical overwrought Shakespearean rhetoric that accompanies unusual cases.

This is the rare case where the jury gets it right AND we actually hear about it. If there were more such examples, people might have a fairer picture of the justice system.
2.10.2006 4:13pm
Just curious: Did it go to the jury on assault/battery or negligence? (I'm guessing assault/battery, but not sure.)
2.10.2006 4:24pm
Ted Frank (www):
Eugene, I disagree with your assessment: Palgraf won in this case, because the judge denied summary judgment. The jury disagreed that the shrimp was the cause of Colaitis's death, but the judge definitively ruled that, assuming the plaintiffs' theory to be true, the act of tossing the shrimp could be deemed to be the tortious cause of Colaitis's death.

Steve: Benihana won this case only after a four-week trial. They will recoup none of their attorneys' fees, which are well into the six digits. This is not a case where the system got it right, it's a case where Benihana was not hurt as much as it could have been if the jury came to a ludicrous result. Right would have been the judge throwing this case out on summary judgment in November 2004, and awarding Benihana its attorneys' fees so that it would be in the same position it would have been if the illegitimate suit had never been brought.

Overlawyered has additional detail.
2.10.2006 4:37pm
Ted: Are you saying that it went to the jury on negligence? (honest question)

It is also important to note that, were the plaintiff's claims believed (i.e. repeatedly asked the chef to stop throwing, he wouldn't), this is a textbook case of tortious assault/battery. Moreover, NY law holds assault/batterers liable for injuries caused by resulting medical malpractice. If it went to the jury on assault/battery, the system worked exactly as it should.
2.10.2006 4:54pm
Eugene Volokh (www):
Benihana lost -- but Palsgraf, Jr. lost, too. What's more, she (or her lawyers) lost more because the judge denied summary judgment; they had to spend more time and money, and still got nothing. This doesn't mean the legal system is in great shape, I agree; it's just that this isn't a victory for this plaintiff.
2.10.2006 4:56pm
Ted Frank (www):
The plaintiffs did sue on negligence, and Benihana's motion for summary judgment on the negligence count on Palsgraf grounds was denied.
2.10.2006 4:57pm
Ted: If true, then I agree with you - Benihana shouldn't have had to spend money to defend a negligence suit.
2.10.2006 5:01pm
Ted Frank (www):
Colaitis didn't lose on Palsgraf grounds, however. Palsgraf lost on proximate causation, while the Benihana jurors stated that they didn't think that Benihana breached a duty and didn't believe the family's testimony that the chef threw food at them over their protests.

The denial of the summary judgment increased the value of the case, and the ability of Colaitis to profit from settlement. The Colaitis family didn't lose anything other than time (and gained that back in publicity); the case was taken on contingency. The plaintiffs' lawyers' business-model expects to lose the majority of cases; they're hoping for a lottery-sized verdict, and know that they'll be scratching a lot of losing tickets on that path. So while they're technically worse off ex post, there clearly isn't sufficient disincentive ex ante against bringing these cases and imposing externalities on innocent defendant.
2.10.2006 5:08pm
Bottle of Heavy:

The plaintiffs' lawyers' business-model expects to lose the majority of cases; they're hoping for a lottery-sized verdict, and know that they'll be scratching a lot of losing tickets on that path.

Even given settlement expectations, I'm not sure that this business plan supports the number of lawyers who actually take on plaintiff's work. (though it might be a business plan for a few larger firms.)
2.10.2006 5:15pm
frankcross (mail):
I'm surprised at the people who think this was a clear summary judgment.
The plaintiff testified that the chef threw shrimp at them. They asked him to stop. The chef continued to throw shrimp. Now, how can you say there's no argument when a person continues throwing things at you after you have asked them to stop. Obviously there are proximate cause issues but those go to the magnitude of damages, not the existence of a claim.

"The plaintiffs' lawyers' business-model expects to lose the majority of cases; they're hoping for a lottery-sized verdict, and know that they'll be scratching a lot of losing tickets on that path."

This is often asserted but without evidence. There's plenty of empirical evidence, by Bert Kritzer and others, that this claim is simply false as a general rule.
2.10.2006 5:16pm
Ted Frank (www):
This is a clear partial summary judgment on the issue of negligence and proximate causation of the injuries claimed. The case goes away if that's granted.

On the other hand, there's the empirical evidence of the plaintiffs' lawyers like Mark Lanier who explicitly state to the press that they're thrilled with a ".333 batting average." Too bad for the two out of three plaintiffs who lose, but they're just cannon fodder.

The SUV-rollover cases against Ford are a good example of the lottery-style litigation in action. Ford won the first thirteen trials, and, in the fourteenth case, got hit with a nine-digit verdict.

Kritzer's research is on the low-level run-of-the-mill PI auto-accident lawyer, not the big-time plaintiffs' bar organized attack on American corporations and consumers (which would never open their books to an honest study), and can't be generalized to the latter. Kritzer would probably acknowledge this, judging by his paper in the DePaul L. Rev. on stratification in the plaintiffs' bar, but I don't want to put words in his mouth.
2.10.2006 5:53pm
Why would the case go away if summary judgment on negligence is granted? Wouldn't the assault/battery claim go to the jury? (leaving the defendant liable for the medical malpractice)
2.10.2006 6:07pm
(Or if no medical malpractice, then eggshell skull... either way...)
2.10.2006 6:08pm
This is a clear partial summary judgment on the issue of negligence and proximate causation of the injuries claimed.

You base this on what? The newspaper reports?

How odd that you ignore the substantial out-of-pocket costs to both the plaintiffs and their lawyers, but you attach significant positive value to the "publicity" which accrues to the plaintiffs, as if HBO will be paying them millions of dollars to film "The Case of the Sinister Shellfish."
2.10.2006 6:22pm
frankcross (mail):
Well, right, Kritzer's case is on the typical lawyer. I'm sure you are right that there are some lawyers who take very high payoff cases with low probabilities that can lead to future cases (asbestos, implants, etc). But that's not the norm and what does that have to do with this case? This was not an extraordinary high payoff case.

And what is the answer on summary judgment. How can you grant summary judgment in the presence of testimony that plaintiffs requested the chef stop throwing shrimp? And how can you grant summary judgment on proximate cause when some of the damages were immediate?
2.10.2006 6:40pm
Edward A. Hoffman (mail):
Maybe the commenters who say Benihana should have won at the summary judgment stage aren't lawyers and don't know what summary judgment is. In order to win such a judgment, a defendant has to show that there is literally no way the plaintiff could win a trial in front of a rational jury. In legal terminology, the defense has to prove that there is no triable issue of material fact.

Do you think the family is lying about having told the chef not to toss food at them? Fine, but others might disagree. It's a triable issue because a rational jury could believe the family and because whether the chef had Colaitis's consent is a material fact.

The same is true about whether Colaitis's death was caused by the neck injury that he allegedly sustained at the restaurant. Maybe you don't believe his injury happened the way his family claims, but other reasonable people might. Maybe you believe he was injured but not that the injury ultimately caused his death, but if there is believable evidence that it did then the MSJ has to be denied.

The judge deciding an MSJ essentially isn't allowed to base his decision on his own opinions of witness credibility or about any factual question except in extreme cases, like where a plaintiff testifies that David Letterman uses his monologues to signal a desire to marry her. He can only grant the motion if he finds that no reasonable person would believe enough of the plaintiff's case to rule in his favor. That's an awfully hard burden to carry.
2.10.2006 7:36pm
Simon Spero (mail):
Wait - did this go to the jury on negligence or as assault?
2.10.2006 7:37pm