Turkey Torts: Illinois Case To Determine Proper Way to Eat Sandwich

300px-Flickr_pudstah_2447811561--Tuna_meltA 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

27 thoughts on “Turkey Torts: Illinois Case To Determine Proper Way to Eat Sandwich

  1. Just spitballin’ here, but… couldn’t Mr. Seiler SMELL the tuna before he bit into it? That might have been a clue right there that something was amiss.

    That said, my theory is that the restaurant is “fighting” the case just long enough to reach a resonable out-of-court settlement. They don’t want a jury possibly handing this guy a million bucks, but they need some time and wiggle room to negotiate the amount down out of the public eye.

  2. This happened to me once at camp…I thought I was about to chomp into a grilled cheese and instead it was a tuna melt! I have a good sense of smell and didn’t realize until I had bitten what was inside.

    If his sandwich was toasted it could have possibly stuck together, ya know?

  3. I’ve got to go with the restaurant on this one. Employees at these places make mistakes all the time, so his failure to check the sandwich when he has such a serious condition, is contributory.

    A severe case of the tuna trots resulted.

  4. Remember Five Easy Pieces:

    Jack Nicholson:I’d like a plain omelette. No potatoes on the plate. A cup of coffee, and a side order of wheat toast.

    Waitress:I’m sorry, we don’t have any side orders here.

    Jac Nicholson:No side orders? You’ve got bread… and a toaster of some kind?

    Waitress:I don’t make the rules.

    Nicholson:Okay, I’ll make it as easy for you as I can. I’d like an omelette, plain, a chicken salad sandwich on wheat toast, no mayonnaise, no butter, no lettuce, and a cup of coffee.

    Waitress:A Number Two, chicken salad sandwich, no butter, no mayo, no lettuce, and a cup of coffee. Anything else?

    Nicholson:Yeah. Now all you have to do is hold the chicken, bring me the toast, give me a check for the chicken salad sandwich, and you haven’t broken any rules.

    Waitress:You want me to hold the chicken, huh?

    Nicholson:I want you to hold it between your knees.

  5. “The turkey! You can’t handle the turkey!”

    No . . . wait. I think I may be confusing my Jack movies.

    And as far as J.J.’s goes, the employees have to take the tortfeasor as they find them. Shoulda checked that sandwich before it went out and their “but for” is the proximal cause of the injury.

  6. I’m also going to side with the restaurant on this one. Most “reasonable persons” might just go ahead and bite into a sandwich without looking. But if an otherwise reasonable person also has allergies severe enough that contact with common sandwich ingredients would cause anaphylactic shock, it would not be unreasonable for them to check for these ingredients first.

  7. “(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).”

    ********************

    I take it that comment, Professor Turley, was served with a slice of “wry.”

    Now…I have heard tuna referred to as “chicken of the sea”–but never turkey of the sea. I consider Jimmy John’s excuse rotten to the albacore!

  8. We have food issues in our family, too. It is AMAZING how often things have to go back until you get what you VERY CLEARLY ordered. On the other hand, after 15+ years , several of the places we frequent have at least learned to recognize the “picky-eater lady”, , when I go in to order. And even when I have been able to SEE them pack things up, I still pull things out and unwrap them to check.

    If he had shown reasonable common sense, with allergies that severe, he WOULD NOT HAVE TRUSTED the restaurant to get it right, without checking himself. Period.

    BUT, the restaurant should have been able to make turkey when that’s what he ordered. Period. He should have known better, but THE RESTAURANT DIDN’T GIVE HIM WHAT HE ORDERED.

  9. if you have a food allergy that severe you are the reasonable party for checking what you eat.

    The only thing JJ’s did was screw up an order, any rational person that has been to a restaurant would know that orders get mixed up.

    We cannot reasonably expect someone to take responsibility for our health and welfare when it is in our ability to control their action(s). He could have asked for another sandwich made correctly.

    He should have checked his sandwich. Maybe next time he will look and not depend on a short order cook at a restaurant to be mindful of his welfare.

    But he probably wont and we will be reading about him in some future Darwin Award.

    Another thought, the sandwich was not defective. If someone doesn’t walk well and has trouble with balance climbs a ladder and falls off, is it the responsibility of the ladder manufacturer? Assuming of course the ladder was purchased in good working order.

    So short of ptomaine poisoning or botulism, the guy should take his lumps and learn a lesson – check the sanwhich next time.

  10. By way of elaboration:

    Person A pays Company B for product X.
    Company B gives person A product Y in identical packaging to product X.
    As a result of receiving product Y instead of product X Person A is harmed.

    Person A is unreasonable for assuming that Company B would fulfill it’s end of the contract?

  11. I’m happy to build on the consensus here that when you have severe food allergies, you need to check the order before you shove potentially fatal stuff in your mouth.

    Why should Jimmy John’s “fight” this case? Because folks like us get called for jury duty.

  12. Caveat venditor on a samich transaction? Dis tuna was not specified. Managing business includes managing risk, going forward JJ’s freaky fast servers will now be verifying each order with their super freak clients.

  13. Look, I’m lactose intolerant. At least a third of the time I order something that usually has cheese in it, no matter how clearly I’ve asked for no cheese, I get cheese…

    Unless it’s someplace I go often enough for them to know me, or I can watch them, or it’s someplace that every order is fairly unique (a burger with a,d,r,and k), I assume there’s a good chance I’m going to get cheese on it, and I’m going to have to send it back. If I don’t have time for that, I don’t order something that usually has cheese.

    But I’ll admit, even though I know that, there’s been once or twice I’ve taken a bite first. But I know I won’t die, I’ll just have to dig around in my bad for my emergency lactaid stash.

    Many restaurants have a note on the menu where they specifically ask diners to tell them about their allergies. I’d guess that if he had told them “I’d like the turkey without mayo and cheese, I’m very allergic to those things”, at some restaurants there would be very different protocols involved than if he’d just said “I’d like the turkey without mayo and cheese, I don’t like them”.

  14. Gyges:

    Please offer real world example of such an eventuality.

    I am trying hard to think of one and the only one I can think of is:

    you are allergic to tuna fish and you buy a can of chicken which is actually tuna fish. But even then if you open the can you can see the difference between canned tuna and canned chicken. Although since you don’t eat tuna you may not know what canned tuna looks like.

    However if you ate canned chicken you would know what canned chicken looked and smelled like and the tuna would not look or smell like canned chicken.

    If there was a little bit of tuna contaminating the chicken, then you would have a case if you were injured.

    I think it comes back to: check your order if you are allergic to certain foods.

  15. AY:

    thanks, that sheep is a West Virginia breed. They are bred specifically to defend against 2 legged suitors commonly found in West Virginia.

    Or so I have been told.

  16. Byron,

    Sure:

    A guy (person A) walks into a sub shop (company B), orders a turkey sandwich hold the cheese and mayo (product X). They give him a tuna-salad sandwich, with mayo and cheese (product Y), wrapped in the same paper that they wrap their other sandwiches in. (I’ve never been in a Jimmy John’s but I’m assuming the fairly common practice of using the same paper for every sandwich) Assuming that the sandwich shop got his order right the guy takes a bite, goes into anaphylactic shock.

    I’d say that fits my scenario to a T.

  17. Gyges:

    it goes back to check your sandwich if you can die. Obviously we disagree about the individuals level of responsibility to protect himself.

  18. 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?”

  19. 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.

  20. 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.

  21. Buddha,

    Yeah, I simplified things, and there are always exceptions. Well, almost always.

    I’m nothing if not generally consistent.

  22. 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.

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