Tort or Torte? Restaurant Requires Waivers Before Customers Try Hot Food

A Massachusetts restaurant has made news this week by requiring waivers before people eat its hot food. The waivers are being handed out at the East Coast Grill in Cambridge.

The restaurant insists that the waiver for Hell Week at the East Coast Grill are not a promotional stunt because they have already had to get medical assistance for one man.

The question is liability for super hot food. There are plenty of super hot food dishes in restaurants, which generally warn the customers. Under the Third Restatement, a warning defect occurs “because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings … and the omission of the instructions or warnings renders the product not reasonably safe.” There would be ample reason to warn about super-hot food that has caused breathing problems. Indeed, there may be question about whether the restaurant can serve food known to get people ill.

The question is whether a waiver is warranted. A waiver creates an express assumption of the risk though the risks would have to be clear and understood. Do the waivers state the person could experience unconsciousness or serious injury? If so the health department is likely to view such a waiver as an admission of serving harmful food products. Yet, I believe people should have the right to do stupid things, including eating painful peppers and food. People have pepper eating contests that produce considerable pain for the participants.

There are limits however to some defense claims based on warnings or waivers. Today, for example, I worked out at the hotel in Salt Lake city on a LifeFitness machine that had a warning that users should “consult with a physician before using this machine.” Clearly the company knows that few people immediately return to their room and try to reach their doctors before working out. It is equally unlikely that most people will include this on their list of matters to be addressed in the annual checkups. That being the case, what is achieved by such a warning. The fact is that the company is already protected by defenses of assumption when someone pushes themselves too far, particularly on a machine that offers heart-rate monitoring.

I have previously written about legal mythologies on how torts law has forced companies to post ridiculous warnings and other act other counterintuitive acts. The annual award given to the worst warnings on products is an example of such mythologies — these ridiculous warnings (like warning that a toilet brush should not be used for personal hygiene) are not legally compelled.

In this case, a warning would certainly appear warranted given the accounts of medical assistance needed for some customers.

Source: CBS

FLOG THE BLOG: Have you voted yet for the top legal opinion blog? WE NEED YOUR VOTE! You can vote at HERE by clicking on the “opinion” category. Voting ends December 31, 2011.

12 thoughts on “Tort or Torte? Restaurant Requires Waivers Before Customers Try Hot Food”

  1. A Massachusetts restaurant has made news this week

    That is it. The waiver is nothing more than a advertising gimmick. Not even an original one at that. Same as having to sign a waiver before seeing a horror movie for fear of having a heart attack due to being frightened so much.

  2. MS: Did the same with one of those little red peppers — I broke out in a sweat and my glasses slipped off my nose, my ears started ringing, my throat got tight, entire mouth was burning, I got some relief by slowly swishing and drinking a glass of milk, and then stated to my amused companions that I’ve had worse — and I had.

    Thai cuisine apparently takes a dried version of the pepper, chops it, mixes it with pineapple juice, and reduces the mixture to a thick paste. The sweetness fools the tongue — for about 2 seconds. Just smelling that stuff causes me sympathy pain.

  3. @Oro Lee – Years ago, I worked as the token gringo at a Mexican restaurant in Greeley, CO.

    Enticed into a pepper eating contest, I was able to get 4 large ones down before calling it quits. Got to eat ice cream for the rest of the evening, and was given a quart to take home. Asked what it was for.

    Was told I should sit on it after my a.m./b.m. to kill the impending pain… 🙁

  4. I remember many years ago eating with some friends at an authentic Szechuan restaurant in NYC’s Chinatown. The youngest among us, a brash youth intending to prove something, ate a whole pepper that the waiter had told us not to eat when serving this dish. An hour later after many pitchers of ice water and trips to the bathroom he finally recovered.
    While we had concern for our friend, his ignoring the waiter’s caution and its result, was the cause for much merriment. Having taken a Law School Torts class, it amazed me that in some instances, even with advanced warnings, there were findings for the plaintiffs in some egregious cases.

  5. This is True: I used to make and sell (really neat) picture frames made out of recycled fence boards. The label sticker actually ended with, “Do not eat.” Whew, that was close!

  6. This should generate some business for them, because some of the bravado and macho mechanisms are likely to kick in.

    Smart advertising as well as self protection.

  7. I am game….Raff…I bought some Ghost Pepper sauce from World Market….So far….I have found some peppers that have made me water for about 10 minutes this year…I have yet to find the unmitigating burn that of ears ago…..I have found some mustards….and horseradish that will peel the top of the skull from the inside out….

    With this case…at present…give em the warning and let God sort out the details….I think food, unlike working out….most people know what they can handle….

Comments are closed.