Legal News

Diner Makes Legal Meal of Injury From Artichoke Leaves

By Matthew Heller, Editor

A Florida man who says he was injured from eating the leaves of a grilled artichoke has filed a lawsuit that may test whether a restaurant has a duty to explain to patrons how to eat unfamiliar food items.

Grilled artichoke isn't on the regular menu at Houston's in North Miami Beach. But Arturo Carvajal says his table server offered it to him as a special on May 3, 2009.

?Neither at that time;? Carvajal alleges in a complaint filed last month,

nor at the time the ?Grilled Artichokes? were served to Plaintiff, did the Defendant's order taking server or the Defendant's food delivery server ask Plaintiff whether he was familiar with how to eat ?Grilled Artichokes? or explain to Plaintiff that [the] outside portion of the leaf should not be eaten; rather, only the inside portion of the leaf was safely digestible.

As a result of eating the wrong part of the leaf, the suit says, Carvajal ?began experiencing severe abdominal pain and discomfort? and ended up in the hospital where, during exploratory surgery, ?artichoke leaves were found lodged within Plaintiff's small bowell [sic].?

He has sued Hillstone Restaurant Group, which operates the Houston's chain, for negligent training of its staff, alleging it had ?a duty to use reasonable care with respect to the serving and explanation of items not described on the menu; which by their appearance as served  appeared wholly consumable.?

The art of eating an artichoke ? of which only the heart and the soft, pulpy part of the inside of the leaf are edible ? has certainly challenged many a gastronomic novice. ?If you didn't grow up eating artichokes and if you were encountering them for the first time, they might seem a little intimidating,? says one food website.

But Carvajal is pushing the legal envelope by arguing that Houston's was negligent in ?failing to train its servers to explain to customers the proper method of consuming an artichoke.?

Florida, like other states, uses a ?reasonable expectation? test in unfit food cases. A preparer of food ?has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,? the Florida Court of Appeals said in Zabner v. Howard Johnson's, 201 So.2d 824 (1967).

Carvajal, though, can't recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

Courts have found that salesmen have a duty to explain insurance policies, loan agreements and investment strategies to consumers. In Vucinich v. Paine Webber, 803 F.2d 454 (1986), a stockbroker was found liable for failing to explain ?the nature of short selling to [a customer] in a way that she could understand what she was getting into.?

But the duty in such cases arises because the salesman is a ?fiduciary? of the customer with the authority to make financial decisions on the customer's behalf.

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, ?How do I eat this??

By Matthew Heller
On Point

Full post as published by On Point News on November 05, 2010 (boomark / email).