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Restaurants and Aspirin (and the Like):

On occasion, I've found myself with a nasty headache in a restaurant; and when I've asked the front desk whether they had any aspirin (or whatever else, but I'll just say aspirin for now) I could have, they've always said no.

Now my sense is that, like most employers, they do have some aspirin for their staff, likely in those little individually wrapped packets. It's also probably in their interest to help out with it: If I've got a bad headache, I'm going to have a less pleasant dinner, and while I probably won't consciously resent them for not helping, I'll be slightly less likely to come back soon (since often one comes back to a restaurant because of memories of recent pleasant dining experiences there). And of course giving me some of the aspirin would cost very little money and time. So why not help out, especially given that they're in a service industry where the presumption (I'd think) is that they should try to help the customer with simple requests that could make him happy?

One possible theory, which I recall having heard a couple of times from restaurants, is that they don't want to give out aspirin for fear of product liability should anything bad happen to me. But I don't really see the real liability risk: There's nothing negligent in their giving me something that I could buy over the counter at a gas station — it's not like they're giving me medical advice. Given that they're not negligent, the only extra risk is strict product liability, but that only arises in the extraordinarily rare circumstance the aspirin was somehow defective; and even in that rare case, it's likely that the payment would come from the manufacturer, not the distributor, with the distributor being on the hook only if the manufacturer is insolvent.

So is it that the restaurant just doesn't want the hassle of helping me? That, contrary to my assumption, they don't have aspirin around for the staff? That they fear liability without much foundation, because there's some industry myth about it afoot (or because they just haven't looked into the legal question, and err on the side of caution)? That, contrary to my sense of tort law, they may in fact be legally on the hook if I react badly to the aspirin? Or something else?

UPDATE: A recurrent thread in many responses is that the restaurants are afraid even of a tiny risk of litigation, and are reasonable to be afraid of it. I wouldn't generally fault them for it; I'm sympathetic with such concerns. Still, if the risk of litigation is really tiny -- some commenters suggest that it's not, but I'm still not persuaded -- wouldn't they at some point conclude that keeping a customer happy is worth the tiny risk of even a huge hassle and cost? (My guess is that much of the cost would be insured, by the way, though I'm not sure.) After all, despite the supposedly "paralyzing" risks of litigation (I quote one of the commentators here), business do lots of things that have some litigation risk.

Some other commenters dealt with this, by suggesting that businesses will run litigation risks in what they see as the core area in which they must, but will shun even tiny risks outside that area. This isn't necessarily so -- for instance, though I hear that many businesses have tamed down their Christmas parties, many do still have them, even though any such activity involves some extra risk (harassment litigation, lawsuits from people hit by employees who drive home drunk, and so on), and even though it's far from obvious that such parties are really necessary to build morale -- but I suspect it's part of the explanation. Still, I think one needs some such explanation and not just a theory that businesses will always avoid any risk of liability, however unlikely.

Michelle Dulak Thomson (mail):
Eugene, it's quite possible that the really don't have any, or at least not to hand. Most employers do keep first aid kits to hand, but oddly enough, not always expedients for minor injuries or ailments. I just spent a stint working in a bookstore and suffered a paper cut; there was plenty of heavy-duty wound-dressing material and surgical tape on hand, but no such thing as a Band-Aid. I made do with a bit of paper towel and ordinary tape, which must have looked odd but at least protected the cut.
1.11.2007 1:05am
Alice Marie Beard (mail):
Eugene, if the need should arise again, ask your server, and then remember to add the thank you to your tip. Your server is the one who will most directly benefit from your comfort.
1.11.2007 1:19am
Harland Hirst (mail):
As management staff in industry I can say that the Loss Prevention manager has stated that we are not to provide associates with any medication, except those associated with first aid, anti-biotic cream etc. We have vending machines that contain three types of pain relievers and associates keep aspirin/ Tylenol/ ibuprofen in their lockers. I direct people to the vending machines. Our facility is closed to the public, but if it were not I am confident that we would not be allowed to provide medicine to them.

Michelle's problem is common in places without either an active first aid replenishment plan, or due to unfortunate timing. Of course there are no band-aids they have all been used; all the arm slings and eye bandages are ageing from non use.
1.11.2007 1:33am
Arvin (mail) (www):
Even if they have aspirin or Tylenol or whatever, they're opening themselves up to a lawsuit with little to gain. I mean, if you were a restaurant critic or something, it might be worth the risk, but if you're a regular customer, I'd advise against it too.

There are two risks: one, they really are negligent with something. Perhaps the aspirin's expired and the server forgot to check, maybe an employee dropped it on the floor but didn't want to tell anyone, or they stored it too near the oven, and now the chemical balances are out of whack. If something were to happen to you, they could be liable for probably more than they'll ever make off you. And they're strictly liable for what their employees do in the context of their job.

Two, they're completely blameless and they still get sued. This happens all the time, as I'm sure you'll agree. Just extracting themselves from the suit would likely cost several if not tens of thousands of dollars. Worth it to make a customer somewhat happier? Again, I'd advise against.
1.11.2007 3:04am
Lindybill (mail):
You lawyers have everybody afraid to do anything. Simplest way out in this case would be to put a dispenser in the bathroom. 75 cent charge.
1.11.2007 3:14am
Mark Greco:
I think, while you're probably correct that there is no real risk of tort liability to a restaurant for handing out aspirin, I think you've underestimated the real cost and fear associated with the mere possibility of being sued. Those in the legal profession who debate (usually against) tort reform or America's litigious nature very frequently underestimate the unseen costs and effects of potential litigation, even where that fear is unjustified. Remember, not all business owners are lawyers. And even if a restaurant received legal advice (which he would have to pay a large hourly rate to receive), the attorney would probably tell the owner not to distribute aspirin in any event.

Why? Again, because the potential costs are too high relative to the benefit. No body expects aspirin from restaurant, no one can advertise that they hand it out, and no one is likely to withhold business if a restaurant withholds aspirin.

Also, it's important to note that a business handing out distribution sort of reeks of something that might either be regulated by government or opens oneself to liability, even if it happens not to be the case. Maybe this evaluation is more a function of an over-regulated society rather than an overly litigious one, but it nonetheless probably causes some owners to balk when allowing aspirin to be distributed.

I coincidentally have some experience asking for aspirin in restaurants in Europe, and I have always received it. In places where tipping is certainly not the norm, and attentive servers are hard to find, receiving aspirin there would seem less likely than in the US. But, as it turned out, it's quite the opposite.
1.11.2007 3:17am
mailinator@mailinator.com (mail):
It's really more of an aside but, as a former server, I think I would react in the same way to such a request as I did to a request for "stain removal" while abroad with foreign friends. I was shocked when the server brought a bottle (more than one time) and brush for my friend. Does this happen in the U.S.? I feel awfully naive for not knowing.
1.11.2007 3:52am
Brian O'Connell (mail) (www):
I've worked as a server in a wide variety of restaurants. My experience is that all restaurants have aspirin for the staff- and not in individual sanitary packets either, but in off-the-shelf large bottles of large counts. (Working in a restaurant can be headache-inducing.)

Universally the restaurants' policies were to not give aspirin to customers for fear of liability.

In a scenario where someone suffered some ill effect from an aspirin given to them by a waiter, I find it hard to imagine that the restaurant wouldn't be sued in addition to the manufacturer, if anyone is to be sued at all, especially if the restaurant was part of a big chain or corporation. The lawyer would gain nothing by letting some deep pockets go.
1.11.2007 4:21am
ReVonna LaSchatze:
I suspect it's in how you're doing the asking...
From my service and retail work, yes, sometimes there is a first aid kit, rarely does it have individually wrapped aspirin anymore. Sometimes there is a jumbo bottle of asprin/ibuprofen there, for employees' use; often not.

Pick a female server, as they are more likely to carry purses and have aspirin. Make it a "special request", person to person, not customer to institution. Again, the institution probably doesn't have a stock for customers the server knows about.

Also, hint that you will reward, or compensate their taking time out to hunt you down an aspirin. I doubt many young servers link a higher tip with finding you an aspirin. Makes sense when you spell it out (happy meal = better tip), but unless you see that, that worker is taking precious time away from their known duties (seating, taking orders, serving, paying attn. to tables etc.) to go the extra mile for you.

Ask the hostess who seated you. She is more likely to carry one, or have time to ask others what they personally have. (Also, someone mentioned the vending machines or convenience gas station nearby. Maybe when you're asking, pull out a dollar or two and give it to the person you ask to help find you one. Hence, the "reward" is obvious and you're more likely to get the extra service. Sometimes at bars, if there are no vending machines, a server on break is willing to run across the street for a pack of smokes for someone, so why not an aspirin too?)
1.11.2007 4:57am
Brent Dear (mail):
You're living in "la-la-la-wyer" land if you believe that a restaurant won't be sued for a bad reaction to the aspirn, much less found liable.

As a former franchiser of a regional "sit-down" family restaurant chain unit, we were advised that the corporation would not allow the giving of aspirin, Tylenol, Tums, etc. because of the potential liability.

I was shocked to find myself sued, along with the corporation, when a woman fell in my restaurant because her shoe heel broke. While she lay on the ground, she asked if I would help move her over (approx 14 inches) to get out of the "humiliating" direct flow of foot traffic. With her husband helping me, she was carefully moved while we awaited paramedics. She began to scream that her neck was "on fire", and appeared to be in pain as the paramedics took her away.

5 weeks later, I received the papers on the lawsuit against me and the corporation for negligently aiding in her suffering by moving her (I should have refused to help her, other than the paramedic call, our lawyers then told us). The corporation settled with the woman for $14,000.
1.11.2007 6:42am
logicnazi (mail) (www):
Aren't even OTC sales of drugs more heavily regulated than just food distribution? Are there special laws about who it can be sold to, e.g., no selling the medicines to 8 year olds?

I'm quite curious though as to why there would be a greater chance of having to spend money to defend a lawsuit against asprin than against poor food preparation if their isn't an actually greater liability.
1.11.2007 6:48am
DK:
FYI, aspirin can be dangerous. Some people can have severe asthma attacks from it, and it can cause Reye's Syndrome in children with the flu.

Obviously these are minor worries for a headache prone adult without asthma. But no restaurant is going to train their staff to give out aspirin only to people over 18 and only after asking if you have asthma.
1.11.2007 7:03am
Mr. Bingley (www):
The nurse in my daughter's school, not some waiter but the steenkin' nurse, can not give out aspirin, nor are children allowed to have any on them for any reason, regardless of their health or need for some pain relief. You think some business is going to give them out to customers? Sorry Eugene, but Brent said it best:


You're living in "la-la-la-wyer" land if you believe that a restaurant won't be sued for a bad reaction to the aspirn, much less found liable.


The John Edwards of the world have forced us to think of everything as a legal liability. They are killing our society.
1.11.2007 7:04am
NI:
Oh come on guys, there's a far more basic issue here that has little to do with liability (though I agree with everyone that fear of being sued is a genuine concern). Should the restaurant help you change a flat tire, or fill your tank if you run out of gas as you're driving into their lot? Should it keep on hand postage stamps and offer to mail letters for you? If you've just returned from Europe and have a wallet full of euros should it exchange them for you? All of these things would make the customer happy but they have nothing to do with the service the restaurant actually provides, which is serving meals. You don't expect the corner drug store to serve dinner, so why would you expect the restaurant to sell drugs? That's not what they do.
1.11.2007 7:54am
steve (mail):
I've asked for aspirin and gotten it. Now, if I'd asked for
Pepto...
1.11.2007 7:54am
Debauched Sloth (mail):
As previous posts have indicated, there's no mystery here: restaurants don't give out aspirin because they are concerned about the risk of being sued. I used to do a fair amount of insurance defense work on the defense side, and I can say with some authority and great convicion that whether a business should be held liable often has little to do with whether it will be held liable. Thus, conduct that may not seem rational or reasonable on its face takes on a much different appearance when you fully appreciate the risks and costs to a business of being dragged into the U.S. tort system. And while that system isn't quite as bad as its shrillest detractors claim, it's still pretty bad.
1.11.2007 8:04am
Brian Kalt:
Strict liability typically wouldn't be an issue here. In states that have strict liability for defective products, strict liability does usually extend to retailers. Something like this, though--a restaurant that is providing a service, and providing the product only incidentally--would not lead to strict liability, even if it charged you for the aspirin.
1.11.2007 8:17am
The River Temoc (mail):
Two, they're completely blameless and they still get sued.

Could there conceivably be grounds for holding a restauranteur negligent for *not* giving a customer aspirin? Say, for example, the customer develops a severe headache over the course of the meal, which distracts him on the ride home and causes him to get in a car accident?
1.11.2007 8:24am
The River Temoc (mail):
The John Edwards of the world have forced us to think of everything as a legal liability. They are killing our society.

I think this is a grossly unfair comparison. John Edwards made his money off of truly egregious product liability cases; the one that comes to mind was the case of a little girl in a hot tub who somehow became entangled in a motor and had her intestines pulled out.

Surely a *lack* of relief in such a situation would be far more outrageous than the fact we can't get aspirin in restaurants.
1.11.2007 8:32am
wm13:
I'm not sure about my current firm, but I know my previous firm stopped dispensing aspirin etc. because of liability concerns. I'm curious: does Mayer Brown dispense aspirin and other OTC medications to its staff and premises visitors?
1.11.2007 8:37am
Mr. Bingley (www):
Grossly unfair? I don't think so.
1.11.2007 8:47am
Bruce Hayden (mail) (www):
The River Temoc,

I have no doubt that John Edwards won on cases having merit. The problem is that he also appears to have made a lot of money off of cases totally lacking in merit - notably the ob/gyn cases where he was suing for vaginal deliveries using junk science. His problem is not that he was more or less egregious than many others, but rather that he has become the figurehead for contingency fee tort attorneys through his run for the Vice Presidency.
1.11.2007 8:56am
JoeNik:
Don't forget the inhibiting effects of the War on Drugs. OTC medicines are often prohibited because they look like prescription drugs.

At a week long Scout camp I attended, no one was allowed to have any medicine in their campsites including common OTC pills. Additionally, the camp nurse was not allowed to dispense any medicine without a prescription. This Catch 22 meant that the campers could not use any OTC medicine the entire week even in cases where they normally followed a daily regimen.

After spending years of living under this policy especially at school (possession of aspirin is an expulsion offense) I would not be surprised if a server thought she would be jailed for giving out aspirin.
1.11.2007 9:00am
Bruce Hayden (mail) (www):
In addition to the other problems with asprin, I also believe that it is an anti-coagulant. Works great if you are trying to prevent clotting, but there are some for whom it is contra-indicated. Oh, and I forgot that it is a lot harder on some people's stomachs, possibly causing ulcers. Tylenol and Ibprofen have their own problems for small segments of the population.
1.11.2007 9:04am
WHOI Jacket:
Posession of asprin or Day-Quil at school is an expellable offense.

Why on earth would a resturant want basically put a "kick me" sign on their backs for the lawyers?
1.11.2007 9:32am
Spartacus (www):
NI: "Should the restaurant help you change a flat tire, or fill your tank if you run out of gas as you're driving into their lot? Should it keep on hand postage stamps and offer to mail letters for you? If you've just returned from Europe and have a wallet full of euros should it exchange them for you? All of these things would make the customer happy but they have nothing to do with the service the restaurant actually provides, which is serving meals. You don't expect the corner drug store to serve dinner, so why would you expect the restaurant to sell drugs? That's not what they do."

I've been at restaurants in the US that will accept foreign currency. Of course it's miuch more common in countries where foreign currency is seen mroe often. Stamps would be easy to keep around, too, though most people don't mail their leetters over dinner. Valet parking could include a tire and tank fill up. The fact that they already have aspirin on hand renders this comment disingenuous. I am sure it's all about the fear of liability.
1.11.2007 9:36am
Richard Aubrey (mail):
No liability my sweet Aunt Fanny.

Are you JOKING?

Maybe he's trying to sucker some chump restaurant into a position where he can make some money.
1.11.2007 9:50am
John Thacker (mail):
John Edwards made his money off of truly egregious product liability cases

John Edwards also helped defeat, in 1991, a cerebral palsy fund that was going to be set up by the state legislature of North Carolina and funded by doctors and insurance companies. It would have paid money to all victims of cerebral palsy, not just the ones that John Edwards represented (and made big money off of it). Virginia and Florida have similar funds. John Edwards and the state's trial lawyers successfully lobbied against it, and George Miller's (D-Durham) plan was defeated.

The vast majority of cerebral palsy sufferers get nothing (and we don't really know what causes it), while a handful got lots of money, and John Edwards took a huge take.
1.11.2007 9:55am
logicnazi (mail) (www):
I think the school examples aren't very relevant. Schools have very different concerns and liability issues than a restaurant.

The school is dealing with minors and likely acting in loco parentis when dispensing drugs to students thus unlike the restaurant the school has can't as easily push the responsibility onto the individual requesting the medication. I mean c'mon it isn't right but it isn't ridiculous for parents to sue the school because they didn't check if little Tommy was allergic first but it's just downright absurd for an adult to sue a restaurant for giving them the product they requested.

The drug issue is totally irrelevant since the school is choosing to ban student possession of OTC drugs to make it easier to enforce their anti-drug policies which doesn't suggest any liability for the restaurant.

It seems to me there are three plausible theories that have been advanced here but all of them need to be filled out more.

1) Restaurants really do face significantly more liability for handing out asprin than for just serving food.

If so can anyone explain WHY? How could giving aspirin out put you at more liability than serving the much more dangerous drug alcohol? Do supermarkets that sell OTC drugs also face this liability or is it something special about the way restaurants would be handing it out? It seems likely a jury would laugh this case out of court.

2) Restaurants don't actually face significantly more liability for handing out asprin than for serving food but they are more likely to end up in court for it.

Once again why is this true? It seems to me much more likely that people will sue a restaurant for food that makes them sick than for giving out a sealed branded OTC pill. If everyone thinks it is absurd to sue for this and big payouts are uncommon why would people be particularly likely to sue in this situation?

3) Restaurants have an unfounded fear of either 1 or 2 being true.

This seems the most probable to me but I'm still puzzled. If everyone's instinct is that it's absurd to think they would be liable why would people start thinking they would be liable in this case? Why isn't it having valet service, giving people sharp knives, toothpicks or candy the thing that people think will bring lawsuits?
1.11.2007 10:10am
Colin (mail):
Not to obstruct the flow of feel-good "trial lawyers did this to us" conjecture, but does anyone have an actual example of a restaurant or other facility being held liable for dispensing asprin or another OTC medication? I realize that most of the commentors will protest that even if no restaurant has ever been held liable that it's still the trial lawyers' fault, because hey, that's the party line. But I, for one, would like to hear an actual example.
1.11.2007 10:25am
logicnazi (mail) (www):
One more quick point.

Obviously no one is arguing that the restaurant faces no liability for giving out aspirin. However, the restaurant faces some liability for giving out after dinner candies (could put someone into diabetic shock), using peanuts in any of their foods or a hundred other things restaurants do?

The challenge is to explain why giving out aspirin is particularly risky
1.11.2007 10:27am
Sarah (mail) (www):
I stopped working there in 2004, so maybe things have changed, but when I worked at Disneyland, the biggest stores all carried small packets of various types of brand-name medicine, and if you either a) didn't want to pay or b) weren't at one of those stores, you could also go to First Aid (for the curious, it's on the end of Main Street, on the right hand side, just around the corner from the entrance to Tomorrowland -- the same neighborhood as Lost Children,) and get a choice of ibuprofen or aspirin, as well as a couple of other medicines (I personally got no-brand stomach pills; they've also got band-aids and antibacterial gels and so forth.)

The reasoning seems simple enough: Disney gets sued, or threatened, a lot. So if you get injured or even just feel bad while on their property, they want you to admit it, and preferably do so in the presence of their own paid nursing staff, who take notes about your appearance, statements, and demeanor, and issue medication only on condition that you sign for it first.

I imagine that smaller businesses fear the potential suit more (and have lower exposure to begin with,) and might respond with a knee-jerk "ack, don't do that, they might sue us" policy, but that's mostly because they don't have an army of lawyers and nurses sitting around just waiting for that sort of problem, and they don't have the funds for the high levels of training given to Cast Members to try and limit stupid decision-making. The safety training I got for dealing with emergencies always had a strong "here's how we avoid getting into legal trouble" flavor to it (e.g. standing over spills and calling for help, rather than leaving a hazard unattended for a Guest to slip in/be exposed to) and was more extensive than anything I got from the restaurant industry as a server.

I mean, I might think of writing down at least the table number and time of day of a patron at my restaurant who asked for medication, but I doubt the average server has the time or education that would prompt them to do even that. And what happens if you're asking for medication for your child instead of yourself, and I hand you aspirin? Even at DL, we non-nurses couldn't hand out the freebie stuff to Guests. I wonder if letting someone buy something (rather than giving it away) shifts more of the liability to the customer? I worked in several of the stores that sold medicine, and the prices were quite low, maybe $.50 per dose. Based on the amount we were having to destroy each month due to expiration dates, I can't imagine Disney made anything like an actual profit on these items.

(I agree, incidentally, on the general strategy of asking a female, on a personal level, when you really need pain medication. Most of my female friends keep a veritable pharmacy in their purses. My sister even includes a painkiller for pregnant women in her supply, because some of her friends are having kids. And she includes Advil, because our other sister and I prefer Advil to her favorite, Aleve.)
1.11.2007 10:32am
JoeNik:
Logicnazi, I think the answer you #3 (why are resturants scared of giving aspirin but not knives) is the War on Drugs. People logically believe that the rules they encounter apply generally in all circumstances. Lets look at the point of view of a person working at a standard middle class chain restaurant. She has spent the majority of her life in an environment (school) which has strong rules against giving out any OTC medication. These rules make no differentiation between cocaine and aspirin. She is now working in an environment where the rules are if anything stricter than those at school. Why should she believe that the drug rules are different from those she has grown up with? Remember she does not have a legal education.

I do not believe that the War on Drugs is wrong and evil. But it does have the effect of making people fearful of handing out OTC medicine.
1.11.2007 10:33am
Ed:
I worked at Chili's for about 2 years.
The management didn't keep Asprin or other medicatiosn around for the staff. You might occasionaly hear a waitress ask another waitress if she had any asprin, and a manager once gave me a Sudafed, but that was from his pesonal supply not medicine that Chili's had.
1.11.2007 10:41am
David Chesler (mail) (www):
A Sudafed! Were you trying to make meth on your breaks?
1.11.2007 11:06am
Alan Gunn (mail):
Eugene, you really ought to teach torts for a semester or two. The basic flaw in your argument about the restaurant's not being negligent is that you don't get to decide whether it was negligent: a jury, composed of people who know nothing about any science relevant to the case, who are mostly not well educated, and who have a chance to be generous with someone else's money, gets to decide. Juries have decided, for example, that it was negligent for the emergency stop button on an escalator to be red, that a college was negligent in not warning its students that sliding on snow into a wall could hurt them, and that the manufacturer of a lighter with a label warning about letting children play with it was negligent for not pointing out that a fire, if started, could destroy a whole house. Sometimes these decisions are overruled by a court, sometimes not. The law of torts today pretty much boils down to this: If six people think you ought to pay money to someone who was injured, you have to pay. This isn't at all like your fields, where judges make most of the rules--it's a crapshoot.

Someone (I forget who) has pointed out that aspirin and penicillin, if they had just been invented, couldn't be marketed. The lawyers wouldn't even get a shot at them--they'd never get past the FDA because of their side effects.
1.11.2007 11:18am
Redman:

You lawyers have everybody afraid to do anything.



Amen.
I'm surprised that a law professor on a law blog would express surprise that he couldn't score some aspirin from the restaurant.
1.11.2007 11:19am
Byomtov (mail):
There is an interesting aspect to the possibilty mentioned by Eugene that,

" they fear liability without much foundation, because there's some industry myth about it afoot ".

There's an awful lot of exaggerated bashing of trial lawyers, so restaurants react to it, possibly, with silly policies like not giving out aspirin to a customer who asks for it. (Even though, as someone points out, they are happy to sell alcohol).

Who is to blame? Astonishingly, the bashers blame the trial lawyers, rather than ther own exaggerations. Amazing.
1.11.2007 11:23am
ben (mail):
The challenge is to explain why giving out aspirin is particularly risky

This is simple, aspirin isn't expected as part of service in the same way that alcohol or dinner mints are. So the cost of not providing aspirin is less than the cost of the perceived risk associated with providing it. When I worked as a waiter, I received extensive training on serving alcohol, and documenting any incident when a guest was thought to be possibly intoxicated or was refused service (this was a nice restaurant, and neither happened the summer I worked there). Restaurants are deathly afraid of being liable for drunken driving accidents but continue to serve alcohol because it is an important part of their business revenue.

Also don't forget the cost of training waitstaff (with high turnover) to "administer" the OTC drugs.
1.11.2007 11:28am
Sparky:
How about the scenario in which (1) you have a headache, (2) a kindly restaurant employee gives you aspirin, and (3) the headache turns out to have been the beginnings of a cerebral hemorrhage?

Having undertaken to treat you, the restaurant would face a nontrivial risk of liability for negligent treatment.
1.11.2007 11:33am
Sparky:
Hmmm. Maybe the restaurant would be practicing medicine without a license.

That would certainly explain why Disneyland, with RN's or LVN's on staff, is willing to give you aspirin, but restaurants aren't.
1.11.2007 11:35am
scouser (mail):

The challenge is to explain why giving out aspirin is particularly risky.


Based on several years as an L&E lawyer - including at a company that removed aspirin, etc. from the first aid room and restricted it to vending machines - I think two things are at work here: (1) the perception that any risk at all exists - no matter how unlikely - that the company may be dragged into court for distributing aspirin, cold medicine, etc. particularly when (2) the cause of the risk is not related to the core business (unlike a restaraunt serving sugar, peanuts, etc. or a company manufacturing whatnot). In other words, why do something that can never add to, but only has the potential to subtract from, the bottom line?
Believe me, nothing causes the most rational, data oriented execs to go bonkers and start pushing for willy-nilly workplace changes more than realizing that some non-essential risk exists regardless of the probability of that risk occuring. The mindset is fed by the media's focus on the filing and damages ends of the lawsuit process (never hear about the many MSJs granted in between, do we?) and attorneys/Best Workplace Practices Going Forward consultants drumming up business.
1.11.2007 11:36am
Loren (mail):
My company was advised to remove all OTC ingestible drugs from its' first aid kits. Items such as antacid, aspirin, ibuprophine in individually wrapped packs were removed. Part of the reasoning is that "do you want to be liable for your employee self-medicating and then injuring themselves while on the job?" If the company supplied the medication, it was opined that the company became liable for misuse.

From a cost basis, it was apparrent that a lot of the items were being taken home for personal use anyway.

It is very likely that the restaurant does not have any aspirin on hand for both a liability and cost standpoint.
1.11.2007 11:47am
Adeez (mail):
Blaming trial lawyers for outrageous tort verdicts is as sensible as blaming defense lawyers for getting their clients acquitted.

Non-lawyers out there: IT'S THE SYSTEM!!! Why aren't you blaming, first and foremost, your legislature, which could easily enact statutes to better police the system. Or you could blame the judges who allow these cases to proceed. Or you could try the jurors (ya know, your peers, a/k/a Americans generally) who render such verdicts.
1.11.2007 11:57am
Justin Northrup:
Judges are, in almost every case, former lawers. The system is set up by lawers. The lawers intentionaly keep people with strong opinions or knowledge that might relate to the case out of the jury. Trial lawyers are the most accountable for the farces because they have the most control over them.
1.11.2007 12:13pm
Mr. Bingley (www):
Who is to blame? Astonishingly, the bashers blame the trial lawyers, rather than ther own exaggerations. Amazing.

So the skyrocketing liability rates that are crippling many businesses and leading to such excesses that we've talked about here aren't really the product of trial lawyers egging on dishonest citizens to win the jury lottery but are, in fact, the product of our own fertile imaginations?

Gosh, the things you learn online.
1.11.2007 12:16pm
Hieronymous Coward (mail):
Oy. I have always found your commentary insightful but today I find you demonstrating the same infuriating blind spot that every attorney of my acquaintance has.

LAWSUITS COST YOU MONEY EVEN IF YOU WIN!

Please, PLEASE refrain from believing the fiction that the only risk in legal action is a court's judgement against you. Simply having a suit filed, even a frivolous or meritless one, is a risk that businesses face.
1.11.2007 12:44pm
John Noble (mail):
There's no realistic prospect of liability, but you're not talking to the person entitled to make the call unless you're talking to the owner. If you were talking to the owner, he'd probably send someone out to get a bottle of aspirin.
1.11.2007 12:47pm
Richard Aubrey (mail):
Adeez. We could also insist on a caveat in the First Amendment which would prohibit tort lawyers from any sort of campaign contribution. Or maybe we could add that to McCain-Feingold.
1.11.2007 12:49pm
Sebastian Holsclaw (mail):
"But I don't really see the real liability risk: There's nothing negligent in their giving me something that I could buy over the counter at a gas station — it's not like they're giving me medical advice. Given that they're not negligent, the only extra risk is strict product liability, but that only arises in the extraordinarily rare circumstance the aspirin was somehow defective; and even in that rare case, it's likely that the payment would come from the manufacturer, not the distributor, with the distributor being on the hook only if the manufacturer is insolvent."

This is completely beside the point. Even if we stipulate that the chance of the restaurant being HELD liable is vanishingly small (and personally I would put the chance at no more than 'somewhat unlikely') that fact has very little to do with the costs in question.

The real question is whether or not they are likely to have to spend vast amounts of money defending a suit if something goes wrong. That answer is a clear 'yes'. It happens all the time becuase of the incentives available to the plaintiffs' attorney. I've worked on both sides of the issue so I'll try to explain.

Bringing a case to court is costly. Contrary to popular anti-attorney belief, most cases brought anywhere near trial have merit against someone. The incentive problem is that while bringing a case is expensive, adding ancillary parties to what you already think is a good case is nearly costless--especially in the pre-deposition stages. So while you may have an ok case against someone in the suit, you will probably have an awful case against a majority of the defendants in the suit.

Flipping over to the other side, defending a case where you are a marginal defendant can still be very costly. So if you can settle for a few thousand (or in big cases ten or twenty thousand) you might be saving huge amounts of money compared to actually defending the case. No plaintiff would be suing you if you were the only defendant--you aren't really liable. But as an additional party, there is very little downside to suing you. The cost is essentially the same as only suing the obviously responsible party, but there is the added potential benefit of lots of small settlements.

As to the question of why they are worried about aspirin when they can get sued for food poisoning (where they are much more likely to be held liable) that is answered by two things.

First, serving food is essential to the functioning of a restaurant. They can't avoid that.

Second, the fact that they are more likely to be found liable for food poisoning when they can't avoid serving food has nothing to do with the fact that they could be sued, spend lots of money (hopefully) not being found liable, but could avoid the whole issue by not dispensing aspirin.
1.11.2007 12:59pm
mailinator@mailinator.com (mail):
Scouser's (and A. Gunn's) point is right on. I think the best way to put it is: how would a restaurant be disadvantaged vis-a-vis other similar restaurants should the former not provide Aspirin? Professor Volokh suggests that he and other customers potentially may or may not (consciously or otherwise) return to the restaurant as a consequence of a bad experience. It seems to me unlikely that this would happen frequently enough to make any detriment to profit that could not be offset (should it even be the case that there is a negative impact) by using that time and expense toward providing better core service. Then again, since it seems most restaurants do not provide aspirin to guests, there will be "bad experience" customers coming to the restaurant that lost "bad experience" customers to other restaurants. Where is the systematic benefit? And, well, if you didn't bring an aspirin this time..... why give you further incentives not to carry one?
1.11.2007 1:08pm
Bruce:
This discussion reminds me of Robert Ellickson's Order Without Law -- the ranchers who had well formed, but wrong, notions of tort law that prevented them from assessing their risk correctly. Here the restaurant is assuming all sorts of risk for the food it's serving on a daily basis -- how much incremental risk could there possibly be from the aspirin?

That leads to another thought, though, which is that it possibly wouldn't fall under whatever insurance coverage the restaurant has.
1.11.2007 2:42pm
Ken B:
You are a law prof. Your idea of tort law isn't theirs. OF COURSE they fear legal ramifications. We live in a time where fear of litigation is universal and paralyzing.
1.11.2007 3:07pm
gallileo (mail):
how much incremental risk could there possibly be from the aspirin?

That question isn't put correctly. The real question is:

How much incremental benefit could there possibly be from the aspirin?

The answer is: not enough to balance the incremental risks.

If someone in your restaurant wants aspirin, then they are already there. They are unlikely to blame you for their bad experience, particularly if they are a repeat customer.

All it takes is one lawsuit (note, not losing one lawsuit, just one lawsuit filed) to make the benefit not worth it. Even if the odds of one getting filed are tiny, tiny tiny, the risk doesn't outweigh the potential trouble.

Further, the risk exposed by serving food is quite different from the risk exposed by serving medicine. Not the least of which is that a restaurant's core competency is in serving food. They know how to make good safe food. Presumably, the restauranteurs understand the issues, that's why they are restauranteurs instead of nurses. Evaluating a medical condition--which is what you have to do if you give someone drugs--is a very different case.
1.11.2007 3:09pm
NI:
Here's an interesting question (and I haven't actually thought it through; I'm just thinking out loud). I wonder what would happen if doctors, restaurants, and everyone else who bitches about trial lawyers would just drop their liability coverage. Then when they get sued they could smile sweetly at the plaintiff's lawyer and say, "Even if you win, you won't even recover your out of pocket costs, because other than the silverware and the kitchen utensils and the deep fat fryer -- all of which you can try to sell at a yard sale or on ebay -- this corporation is judgment proof." Maybe the real problem is the easy availability of insurance proceeds.
1.11.2007 4:03pm
Elliot123 (mail):
I suspect Prof Volokh is confusing the theory of the law with the practice in the streets. The restaurant has little control over the emotional and mental health of its patrons. Therefore, they probably have customers who would love to sue anyone from Ronald MacDonald to Donald Duck, and they can always find some lawyer who will accommodate them.

The transaction cost of obtaining the common sense decision the law may eventually deliver is simply wasted money when the risk can be eliminated by just saying, "Sorry, we don't have any aspirin here." The benefits of the law are not free. They are bought and sold like anything else.
1.11.2007 4:09pm
Debauched Sloth (mail):
Anyone who can't see why rational restaurateurs would be disinclined to provide nonprescription medications to their clients simply doesn't fully comprehend the American tort system. Somewhat paradoxically, there is probably less tort litigation in this country than there *should* be, at least in terms of the proportion of people with genuine injuries and meritorious claims who actually end up filing suit or otherwise seeking redress. But it is equally clear that an unacceptably high proportion of nonmeritorious cases get filed.

Why? Because the costs of filing a nonmeritorious case are exceedingly low ($100-$200 filing fee; a few hours work by a competent paralegal; utterly trivial risk of sanctions) in comparison to the anticipated benefit (nuisance value settlement at the low end; huge jury pay-out at the high end). What you get is a segment of the plaintiffs bar that peforms the legal equivalent of strip-mining or drag-netting: file suit on virtually everything that comes in the door because hey, you never know which case will turn out to be a winning lottery ticket.

Unlike some posters, I'm not ragging on the plaintiffs' bar -- the current system allows them to engage in legal strip-mining, allows them to externalize the costs of that activity, and maintains an incentive structure that makes it remunerative. What do we expect?

The only way to fix the problem is to alter the incentive structures. That can be done most effectively by harnessing the most powerful engine driving the current system, namely, the inherent irrationality of the system itself. How? Easy. Two-way fee shifting, with a twist: Allow juries to award damages against plaintiffs' lawyers who bring patently unmeritorious (not simply losing, but patently unmeritorious) lawsuits. It puts the plaintiffs' bar in a deliciously uncomfortable position -- if those twelve people in the box were competent to evaluate the conduct of -- and assess a multi-billion dollar, industry-killing award against -- an entire industry (like, say, silicon breast implants), then surely those same twelve people are competent to decide whether you should be bankrupted out of business for your conduct, aren't they Mr. Plaintiffs' Lawyer?

Of course, the punitive fee-shifting mechanism I envision would apply only to lawyers working on a contingent-fee, and those lawyers would be permitted to withdraw from the representation of a given client at any time before trial in order to avoid ruinous liability should they wake up in the middle of the night and realize that -- horrors -- the jury might be just as likely to send them to the cleaners as their opponent.

Not that the ATLA (or Wonderful Lawyers for Justice Who Love Puppies and Do Lots of Pro Bono Work for Old and Poor People, or whatever they're calling themselves these days) would ever allow such a fair and sensible change in policy to kill their golden goose, mind you.
1.11.2007 4:40pm
kwarhola:
I used to work in an Irish pub in New York City (in the '80s).

The word among waitresses was that they were never to hand out aspirin for fear of a lawsuit.

The restaurant was always packed and the waitresses used to make around $300 per night -- less after taxes (ha, ha). Why would a waitress want to risk a $75K per year job for an aspirin?

Professor Volokh says that the risk is "without foundation," but does he expect a waitress--in her fifties who can't tell the difference between baseball and basketball (true story)--to look into "the legal questions"?

I don't mean to be snarky, but ... perhaps Professor Volokh could take $1.99 and invest in a small bottle of aspirin?
1.11.2007 4:47pm
tsotha:
There may be a difference between perception and reality here. While the lawyers present may go directly to a written decision for facts about an interesting case, the rest of us rely, for the most part, on the media for legal news.

Cases which seem ridiculous in newspaper headlines may be much less so when all the details are considered (the McDonalds coffee case, for example), but the newspapers can't include every detail. Besides, outrage sells newspapers. This leads to the impression in the minds of the public tort is all about looking for that pot of undeserved gold.

Whether or not a restaraunt has liablility for dispensing aspirin is secondary. They don't know for sure and it seems prudent to err on the side of caution. Also, corporate counsel will never get any grief for a no-aspirin policy, but might be in trouble should the company get sued.
1.11.2007 5:23pm
RBL:
My guess is that they really don't have the aspirin/Advil. At my former job, we used to have individual packs of both available in then kitchen, then they were cutting costs and had a bottle of both, then reduced costs more and had a bottle of no-name brand, and then just didn't have it at all. This was in 1999. Since then, every other job I've had does not have asprin, etc. available for employees. I think it's crazy. But employers will look for easy ways to cut costs.

But what I find odd is a few things. First, you live in LA which has a 7-11, gas station, etc. on almost every block - just postpone dinner 5 minutes and grab some. Otherwise, put a bottle in your car, briefcase, or an individually wrapped one in your wallet.

I also like the idea of asking the waitstaff. They often help out in a pinch thinking they'll get a nicer tip - as they should.
1.11.2007 6:32pm
BladeDoc (mail):
NI -- some doctors do drop their liability coverage (it's called "going bare." It's most common in states like Florida that protect certain assests from forfiture (sp?). However many state medical boards require liability coverage as a prerequisite for licensure and even in states without this requirement many hospitals require it as a requirement for staff privileges. Even if you're in a state in which going bare is a viable option it's hard to really hide your assets. Many people who thought it was a good idea to put their money in their spouse's name learned differently.
1.11.2007 6:49pm
Alice Marie Beard (mail):
Sounds as if it would come under the concept of no duty to assist a stranger if you had nothing to do with putting the stranger in peril, BUT, if you do assist, your assistance must be at the level of a reasonable person. ... Which is likely why you're not getting your aspirin, Eugene. ... Which puts you back at offering your server two or three dollars to find you an aspirin. ...

A few years back I was in Ocean City, Maryland, nice restaurant, with a sun burn and two rambuncious children. Perhaps the server took pity on me when I asked for an aspirin. For whatever reason, I got the aspirin.

The best legal advise to a restaurant may be not to give out aspirin, but not all problems have legal solutions: Offer a tip to your server. When the tip gets big enough, you'll get your aspirin. ... This isn't law; it's economics.
1.11.2007 6:57pm
Arvin (mail) (www):
Eugene says:
Still, if the risk of litigation is really tiny . . . wouldn't they at some point conclude that keeping a customer happy is worth the tiny risk of even a huge hassle and cost?

Of course. Restaurants hand out dinner mints, which could be infected with life-threatening strains of bacteria because the server who stocked them didn't wash his hands properly. Restaurants valet park cars, even though a valet could steal the car, or crash it. Hell, restaurants exist, which means they can be robbed and sued for not providing adequate security.

It comes down to cost-benefit. Is the cost of X worth the benefit X will bring? I suspect that with many things (dinner mints, valet parking, existing, etc.), restaurants have decided yes. On things like aspirin, they've decided no. I think the answer is that simple.
1.11.2007 7:11pm
Tom Tildrum:
Restaurants serve food containing allergens (potentially life-threatening to the wrong person) all the time, which seems to argue against the general idea that restaurants are irrationally fearful of lawsuits arising from a bad reaction from something they had served. One possibly salient difference as to aspirin, though, is quality control. The restaurant can exercise reasonable control over the processes by which its food is prepared and served, which is not the case if a server is bringing a customer some sort of still that he or she pulled out of a pocket or purse. The medicine may be expired; the server may have confused aspirin for Tylenol; one server may have gotten a pill from another server's aspirin bottle that the other server was in fact using to store Ecstasy.
1.11.2007 8:15pm
Byomtov (mail):
I am wholly prepared to accept evidence that my opinion - that restaurants are reacting irrationally to tort scare stories - is wrong.

So tell me: how many restaurants have been sued over the adverse consequences of handing out aspirin?
1.11.2007 9:12pm
Arvin (mail) (www):
I am wholly prepared to accept evidence that my opinion - that restaurants are reacting irrationally to tort scare stories - is wrong.

So tell me: how many restaurants have been sued over the adverse consequences of handing out aspirin?

But see, a good lawyer doesn't advise clients just due to things that have already happened. Good lawyers try to prevent lawsuits from happening in the first place. A good lawyer sees a potential suit in the aspirin thing. So he tells his client, here's your potential exposure, here are the potential theories against you, here's how much it would cost to defend even if you do nothing wrong, etc. Based on that, the restaurant weighs what it gains and what it risks from handing out aspirin. And many apparently come down against it. That's a very rational process with a rational decision at the end.

That no one has been sued doesn't mean that not handing out aspirin is therefore irrational.
1.11.2007 9:35pm
arbitraryaardvark (mail) (www):
Aspirin kills more people each year than pot does.
Perhaps EV lacks experience in the social nuances of acquiring illicit drugs. It's a learned skill.
The bar I'm on my way to has aspirin packets for sale, so when I was at another bar I asked for aspirin and was a bit embarrased when the bartender fished one out of his personal stash.
I am handling one case at the moment of suing someone for not providing aspirin - but the someone in question was a jail, it was for a month, and the guy had a broken tooth and was in serious pain, which is a different scenario from a restaurant.
1.11.2007 10:41pm
Truth Seeker:
Could it have something to do with the restaurant license or insurance not allowing anything but food products to be served? Maybe they would ned a pharmacy or grocery license or a more expensive insurance policy.
1.11.2007 11:09pm
Elliot123 (mail):
EV mentions the tiny risk of handing out an aspirin. Well, a business is faced with hundreds of tiny risks. A tiny risk here, and a tiny risk there, and pretty soon we're looking at a healthy probability of paying out some real cash. A business has to manage the aggregate. So, if there is no discernable return for all those tiny risks, why bother?
1.12.2007 12:30am
Bruce:
Why do restaurants give out free breath mints and/or toothpicks then? I mean, come on, there has to be more risk from a toothpick than an aspirin. And the offsetting benefit is, again, minimal at best.
1.12.2007 1:16am
Arvin (mail) (www):
Why do restaurants give out free breath mints and/or toothpicks then? I mean, come on, there has to be more risk from a toothpick than an aspirin. And the offsetting benefit is, again, minimal at best.

I would bet custom is a big reason. Back before everyone sued everyone, these were items that restaurants gave out. We now expect them to give them out, and probably WOULD think a little badly of a restaurant that said it didn't have toothpicks. Plus it's a more common problem that people have something stuck in their teeth or have bad breath after a meal. So the return is higher than aspirin.
1.12.2007 1:31am
Public_Defender (mail):
If the real problem is irrational fear of liability without regard for the actual law, tort reform would not help because if people are making their decisions without regard to the law, changing the law won't help.

As to liability, the restaurant is already selling lots of stuff that can cause bad reactions (food). How does it siginificantly increase liability to keep individually wrapped aspirin to be sold at a customer's specific request?

If you want to be paranoid, having a stock of individually wrapped, quality-controlled asprin is probably slightly less likely to get you in trouble than having employees fish one out of their personal belongings. Is the employee's aspirin expired? Did the employee last open that bottle when taking care of her sick kid with the communicable disease? Did she leave the bottle sitting in her car in the hot sun?

If the restaurant sells aspirin, the restaurant can make sure the pills are non-expired, individually packaged, and properly stored.

The person who suggested putting 75-cent automatic dispensers in the bathroom had a common sense solution to deal with the fear and with the customers' desire not to be in pain.
1.12.2007 4:43am
Byomtov (mail):
Based on that, the restaurant weighs what it gains and what it risks from handing out aspirin. And many apparently come down against it. That's a very rational process with a rational decision at the end.

Well, it's a process with a decision at the end, at least.

That no one has been sued doesn't mean that not handing out aspirin is therefore irrational.

Doesn't make it rational either.
1.12.2007 8:57am
tyree (mail):
Tort law will be reformed when we have a majority of legislators who are business owners and not lawyers.
1.12.2007 9:58am
Ken Arromdee:
If you want to be paranoid, having a stock of individually wrapped, quality-controlled asprin is probably slightly less likely to get you in trouble than having employees fish one out of their personal belongings.

If you don't provide aspirin and your employees provide it on their own, and someone gets hurt and sues, the employee will be in trouble, not you. So the stock of aspirin is more likely to get *you* in trouble.
1.12.2007 10:18am
logicnazi (mail) (www):
There were a couple of interesting responses to my questions. In particular I think the claim that the way asprin and similar OTC drugs have been treated as dangerous substances at schools make the restaurants irrationally believe they would suffer extra liability is interesting and plausible.

I guess I'm also willing to admit the plausibility of businesses behaving irrationally about non-essential/customary aspects of their business, e.g., looking at providing dinner mints and asprin very differently.

But I also want to raise a third possibility Prof. Volokh post suggested to me. Perhaps the restaurants are not covered by their insurance policy for dispensing aspirin or are afraid they are not.
1.12.2007 12:31pm
ReVonna LaSchatze:
I'm still not persuaded -- wouldn't they at some point conclude that keeping a customer happy is worth the tiny risk of even a huge hassle and cost? (My guess is that much of the cost would be insured, by the way, though I'm not sure.) After all, despite the supposedly "paralyzing" risks of litigation (I quote one of the commentators here), business do lots of things that have some litigation risk.

RE the Update: You are missing a very basic perspective here, Prof. Volokh, and it clouds your argument. You are in a very very very minority by thinking that are "unhappy" from having a headache in a restaurant and getting no aspirin.

The Christmas party is not analogous. Christians and those working for established businesses have come to "expect" a Christmas party, particularly in those places where the holiday has meaning in a way of living, and is part of the lives of all employees.

Getting an aspirin (for free!) from a restaurant is never an expectation from a majority of people. You are "odd" in your thinking here -- the restaurant should honor all special odd requests like this to keep customers happy.

Most people -- if they get a headache in public, either "tough it out", ask a friend or approach a stranger in a friendly way, or learn to carry small individually wrapped packets of aspirin in their pockets should such an occassion arise.

Your thinking strikes me as odd. The businesses should provide -- take care of your special needs that 99% of the population does not share. It is a service "owed" you to keep you happy and doing business there.

Sorry, but outside of elite circles, your perspective on this matter -- your way of thinking, is the odd man out. Thus, it clouds the rest of your argument. Let me make a comparable: I am a woman. I forget to carry a tampon or pad and get my period. There are no vending machines in the restaurant where I realize my unfortunate timing, and I would like to stay and enjoy my dinner. I ask if the server or hostess (not in a friendly way, but as a client to business) has some panty protection for me -- it would make me happy as a customer if this were provided. They do not. Now I know there is an extra supply in the cabinet above the employee toilet that the women can dip into, if needed and they are caught short. I also know that tampons may cause Toxic Shock Syndrome in some people, even if used properly.

Do I conclude that the business has thought this one out, and is deliberately not making me happy for fear of liability? That they've been advised not to dispense this product? Not necessarily. If I would have asked the employee -- woman to woman, recognizing my special appeal was out of place but needed by me right then -- if she could help me out, would she? Perhaps. Is my request quite out of the ordinary -- not a common one at all, and usually handled differently by the ordinary customer who does not assume that the restaurant would be obliged or even want to make me happy by meeting my special need? Yes.
1.12.2007 12:57pm
ReVonna LaSchatze:
Still, I think one needs some such explanation and not just a theory that businesses will always avoid any risk of liability, however unlikely.

I realize you may reject my explanation, but perhaps if you spent a bit out time out of the theoretical, more considering human nature and "law in action", you will find this a perfectly plausible explanation.

You have to learn to think like a restaurant worker/ manager -- and not strictly like a lawyer -- is all.
1.12.2007 12:59pm
ReVonna LaSchatze:
I also suspect you are discounting the cost thing.

If people know that restaurants routinely distribute individually wrapped aspirins upon request, where is the incentive to bring your own? If patrons are abusive in taking advantage of this freebie, how much extra do you budget to stock all your restaurants with free aspirin?

The best policy is not to get into the business of going the extra mile to meet your customer's need. As I mentioned above, if you meet one need, there is a segment of the population that will begin expecting you to meet other needs to keep the customer happy, even if it has nothing to do with the service being provided.
1.12.2007 1:03pm
Cliff (mail) (www):
Interesting that you bring up aspirin. Maybe the restaurants are all afraid of (or totally confused about) pancreatic cancer. See discussion of recent aspirin research.
1.12.2007 3:01pm
Public_Defender (mail):
If you don't provide aspirin and your employees provide it on their own, and someone gets hurt and sues, the employee will be in trouble, not you. So the stock of aspirin is more likely to get *you* in trouble.

But the employee was on your payroll working for you serving your customers. It would be a defense that the employee was acting outside the scope, but not a dead-bang winner.

Blaming the employer for an employee giving away a personal aspirin is certainly not any more far fetched than blaming the owner for selling an aspirin that caused a negative reaction.
1.12.2007 7:42pm
J.R.:
So... let me get this right... it would be ok for a restaurant to meet customer request by installing a dispensor (the customer indicating self determination in the matter by depositing coins in a slot)... but somehow liability is potentially incured if that same restaurant meets a customer's request by providing asprin gratis upon a self determinate request?

Huh?

I'm minded of a quote that pondered why is should be illegial to sell something that is perfectly legal to give away... of course, they weren't talking about asperin.
1.14.2007 12:01am
Public_Defender (mail):
Huh?

The problem is that you are looking for logic. There is no logic here. Restaurant owners have an irrational fear. Instead of seeking accurate information, they blame consumer lawyers for their own paranoia. Finally, business lobbyist use the irrational fear of frivolous lawsuits to seek bans (or limits) on suits by people who are truly injured.

Give me a break.
1.14.2007 9:31am