Applebee’s is looking at a serious tort action if the Dill-Reese family is sensible. They had to take their 15-month boy to the hospital after someone at Applebee’s allegedly filled his sippy cup with alcohol. The toddler had a blood alcohol level of .10 and has recovered.
Strict liability has long been applied to food as a product. When you combine the alcohol poisoning of a toddler, the chain is looking at a very bad case for a jury. In such cases it is common for the business to look for a rogue employee defense.
In this case, the drink contained an alcoholic margarita mix. Notably, no one at the table ordered an alcoholic drink.
In this case, the food product was not defective so the store could argue that this should be treated as negligence. However, if one looks at the dish or drink as the product, it was defective as milk. Moreover, the family could pursue a type of battery claim as a harmful unconsented to touching — but there is a lack of intent if this were an act of negligence. To the extent that this was an intentional act, the store could argue that a rogue employee cuts off proximate causation. Even if such a defense can negate the respondeat superior claim, there would remain possible negligence in hiring or supervision.
There can also be the possibility for criminal charges in the case depending on the outcome of the investigation.