Legal News

Couple Sue Diner Over Son's 'Severe' Hot Sauce Injury

By Matthew Heller, Editor

The parents of a Tennessee boy are bringing some legal heat against a restaurant where a ?reckless? waiter allegedly served him a condiment without telling him it was the ultra-fiery Blair's Mega Death Hot Sauce.

Restaurants are often sued for serving customers with contaminated food or food adulterated with ?foreign objects? ranging from cockroaches to condoms. But the lawsuit filed last month against a Steak 'n Shake restaurant in Cleveland, Tenn., may be the first to allege a hot-sauce injury.

While dining with his parents on Oct. 9, 2009, the suit says, Timothy Caleb Gann (who goes by Caleb) suffered a ?severe physical reaction? to an order of chili mixed with what a waiter had only identified as ?hot sauce.? After he was rushed to the hospital, his father called the restaurant manager who told him ?the deleterious substance given to Timothy Caleb Gann had been identified as 'Mega Death Hot Sauce.'?

The product's manufacturer has claimed it ?contains ingredients 500 times hotter than a jalapeño chile? and that it is "not recommended for use without dilution.? The ingredients include habañero, cayenne and chipotle chiles and one user has reported that ?Just one tiny drop is fiery beyond belief.?

Caleb's parents, Tim and Mary Gann, indicate in their complaint that the waiter ?substituted? Blair's Mega Death for the restaurant's regular hot sauce. They are seeking at least $60,000 in compensatory and punitive damages, arguing Steak 'n Shake was negligent in hiring the waiter and is vicariously liable for his actions.

The restaurant had a duty to ?warn customers, including the plaintiffs, of the nature of substituted food products that were served,? the Ganns say.

Steak 'n Shake, a unit of Biglari Holdings, is a 500-store diner-style chain located mostly in the South and Midwest. A manager of the Cleveland, Tenn., location told On Point that ?the only thing we have is a pepper sauce? and Blair's Mega Death is not ?on our menu.?

The Ganns are also suing the waiter, identified only as John Doe, but do not specifically allege that he smuggled Blair's Mega Death into the restaurant. They say the waiter asked their son ?if he would like 'hot sauce' with his order? and then ?gave a bottled substance to [him], which he described as 'hot sauce.'?

?Defendant John Doe encouraged and induced Timothy Caleb Gann to consume the substance,? the suit says. And soon after ingesting the chili, Caleb suffered ?hives on his skin, difficulty breathing and severe pain and inflammation of his digestive system including his mouth and throat.?

?As a result of dining at the restaurant at issue,? the Ganns allege, Caleb ?was given a deleterious substance for consumption, which ultimately led to the infliction of severe injuries to his body and permanent damages.?

Causation is often a problem in food contamination cases but Caleb had immediate symptoms and Steak n' Shake can hardly argue it was not reasonably foreseeable that a customer would suffer a severe reaction to Blair's Mega Death.

As far as vicarious liability, the Tennessee Court of Appeals has held that ?a master is not liable for the wilful acts of his servant who steps aside from his master's business and commits an act wholly independent and foreign to the scope of his employment.? Averill v. Luttrell, 311 S.W.2d 812 (1957).

But when he served the Ganns, Steak 'n Shake's waiter was performing an act ?commonly done by such an employee.? And as the New York Court of Appeals has said, ?[T]he employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected.? Riviello v. Waldron, 47 N.Y.2d 297 (1979).

Whichever way you look at it, Steak 'n Shake appears to be in a real legal pickle.

By Matthew Heller
On Point

Full post as published by On Point News on October 13, 2010 (boomark / email).