A tort action in Chicago presents a somewhat novel dispute over the proper way to eat a sandwich. Mackenzie Seiler went to Jimmy John’s restaurant for a Turkey Tom sandwich. He went into anaphylactic shock after he bite into the sandwich, which turned out to be tuna and filled with cheese and mayonnaise. A person with severe allergies, he had specifically told them to hold the cheese and mayo — let alone the tuna. However, the restaurant says it was his fault for failing to properly unwrap the sandwich before biting into it.
He is now seeking more than $50,000 from Jimmy John’s after going into shock.
Seiler’s attorney, Richard Egan, insists that his client ate the sandwich in a traditional way: by peeling back one end of the wrapped sandwich and eating it like “a burrito.”
Jimmy John’s says that his eating habits are contributory negligence and that he is responsible for his three days in the hospital. The restaurant insists that a reasonable person removes the sandwich from its wrapping, inspects it, and only then bites into it. (I also tend to weigh the sandwich on an atomic scale to confirm proper weigh and measure the sandwich to guarantee that it is properly proportioned . . . but that is just me).
Once again, I do not get why the restaurant wants to fight this one. How many jurors does the restaurant think actually unwrap a sandwich completely and do an inspection before chomping down? This fight occurred because the restaurant refused to pay his hospital costs.
I am particularly interested in the experts that will be called by either side in this dispute. The EU must have a rule on this. Of course, there may be some raw regionalism in the case with the restaurant accusing Seiler of eating “like a New Yorker.” I would suggest the sandwich truck guys and the guys at the Billy Goat Grill as obvious choices for experts on sandwich tactics and customs. Of course, as shown in the case of TJ Hooper, industry custom is not always controlling, so the court could articulate a new standard for sandwich consumption.
For the full story, click here and here.
Kudos to Art Nicoletti
Gyges:
my daughter has been in the hospital about 50 times in the last 18 years due to her CF. My wife is at the hospital the entire time and I give her occasional breaks. The visits last only a couple of days.
We do this so we can check to make sure the doctors, nurses and the pharmacy do not do something that would be detrimental to our daughter. We check meds, doses and orders. If something seems screwy we ask, if we don’t like the answer we ask another person. We don’t just accept/assume our daughter will be given the correct medication or dose. And we have taught her to do the same thing for herself.
In other words we take as much responsibility as we can for her well being/health while she is in the hospital. I have asked to have nurses reassigned if I don’t like how they operate or if they appear to be incompetent, we are a bear about our doctors. Luckily they are all top notch and we have gotten 2nd opinions on major procedures or medication changes.
In short a rational person does not leave his health and well being up to the vagaries of a short order cook or even a physician.
As far as your example goes, about division of labor, it is one thing to have your breaks fail and another to have a sandwich in your hand that would take all of 15 seconds to check. For christ sake I check my order at the McDonald’s drive thru because 8 out of 10 times they screw it up. And that is something that I have knowledge of.
I have no knowledge of cars so I do have to trust the mechanic. But I can mitigate the risk by going to a reputable mechanic with thousands of satisfied customers and no claims for failed brakes. Again a rational person takes responsibility for his actions/decisions to the level of his ability and knowledge.
If you want a building designed do you go to a local engineer that was just sued because a building he designed came crashing down or do you go to one that has done hundreds that are still standing? Do you ask around for a good gunsmith or do you go to the one that over sized a chamber for a round that blew up the rifle?
It seems so obvious to me, a rational person does what he can to mitigate “his” risk to the level of his ability to do so. Had I had a food allergy and ate that sandwich I would blame myself for being a dumb-ass and not checking before consumption.
Buddha,
Yeah, I simplified things, and there are always exceptions. Well, almost always.
I’m nothing if not generally consistent.
Gyges,
It’s buddha_is_lauging@email.com and yes, the law agrees with you by in large.
Buddha,
Just double-checking, but that was a lot of legal terms that agreed with me right?
Mainly this is just an excuse to get your dummy e-mail address, I can’t remember if it involved _s and if it was g-mail or not.
Byron,
The responsibility of the purchaser to safeguard himself ends at his NOT ordering food that would kill him. He lived up to his end of the bargain and trusted them to do the same. You don’t get the luxury of picking and choosing your victims initial states when you commit a tort. You have to take them as they come. If your bad act as tortfeasor, your “but for”, happens to be lethal to them and the liability you incur greater than anticipated? That’s just your bad luck as a vendor. Gyges correctly points out that division of labor is a key component, not just of capitalism, but of all economic systems in use today. Part of what makes the DoL work at is a the implicit social contract that you trust a purveyor in due course who holds themselves out for public trading is liable to perform said service or supply products that are not inherently dangerous without proper notification. If they had a sign up that said “WARNING: We many screw up your order and it could possibly kill you” it’s sure going to limit their liability. It’s also going to piss off customers. You cannot have a system where DoL is a key feature and not have that implicit trust. This is part and parcel of how and why torts law came into being. Violating that implicit or explicit (in the case of statutory regulation) trust is the essential nature of most torts related to business transactions. Contrast to torts related to property or personal rights, i.e. trespass or intentional infliction of emotional distress, and you’ll see many examples of this in action. In the present case, while negligent, JJ’s actions would not rise to the level of a personal tort like intentional infliction because for an intentional personal tort like that, pre-knowledge of a condition or situation likely to cause harm to the part of the victim by the tortfeasor is a requisite condition for the “intentional” element of the crime.
Byron,
Have you or someone in your family has had to take prescription medication while in the hospital? Did you check to make sure the pharmacy got it right, or just assumed? Because you could die from taking the wrong prescription.
Same goes for electricians and plumbers working on your house, mechanics working on your car, gunsmiths, all sorts of people along the chain of suppliers\processors\stores that your food goes through, etc. The list of people who if they mess up could kill you is staggerring. The whole division of labor aspect of our economy rests on the fact that we trust other people to give us what we pay for, and if they don’t it’s their responsibility to deal with the consequences.
You’re right this is about responsibility. The company messed up, and it wants to blame the person effected by their mistake. What does it say about your defense when it can be boiled down to, “sure we messed up, but that guy should have assumed we’d do it wrong, I mean what kind of an idiot trusts us?”
Gyges:
it goes back to check your sandwich if you can die. Obviously we disagree about the individuals level of responsibility to protect himself.