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.
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