There is a truly horrific story out of South Jordan, Utah where retired teacher Jan Harding is in critical condition after drinking tea accidentally poisoned with an industrial oven cleaner by Dickey’s Barbecue Pit. An employee confused the oven cleaner with sugar in making the sweet tea for customers. The tort liability is obvious in such a case and could involve both negligence and strict liability claims given the involvement of food or drink served at a restaurant. The chemical has been described as Lye in some news accounts.

Harding, 67, went to the iced tea dispenser and filled up her cup and took a sip. She immediately spat it out and told her husband “I think I just drank acid.” That little amount was enough to send her to the hospital in critical condition and almost killed her. She later learned that she would need surgery because deep, ulcerated burns covering the upper esophagus.

The employee had confused “clean force fryer cleaner” with the sugar in preparing the tea. That product contains sodium hydroxide at an extremely high concentration.

While the Sheriff is investigating, there does not appear to be any crime involved unless the employee was illegal or the chemical is banned from being present in a food preparation area. None of that appears to be the case according to news reports. However, the violation of food safety rules can create criminal liability. If not, the matter would be left in the torts system but the liability obviously would likely be high given the pain and suffering involved in such an accident.

Dickey’s issued the following statement:

The entire Dickey’s family is saddened by the events that occurred in Utah and takes this incident very seriously. We are keeping the entire Harding family in our thoughts and prayers during this difficult time.

We would like to reassure the public that this was an isolated incident in South Jordan, Utah. Nothing like this has occurred in the 73 years we have operated.

I would certainly hope that the use of oven cleaner to make iced tea is an “isolated incident.” However, I expect that I am not the only one interested in knowing what training and container rules were in place in the chain to keep such chemicals away from food preparation areas. I looked at the Utah health code and obviously there are provisions addressing this issue:

4.7.3 Storage – Separation – Poisonous or Toxic Materials.IPoisonous or toxic materials shall be stored so they can not contaminate food, equipment, utensils, linens, and single-service and single-use articles by:

(i) Separating the poisonous or toxic materials by spacing or partitioning; and

(ii) Locating the poisonous or toxic materials in an area that is not above food, equipment, utensils, linens, and single-service or single-use articles. This paragraph does not apply to equipment and utensil cleaners and sanitizers that are stored in warewashing areas for availability and convenience if the materials are stored to prevent contamination of food, equipment, utensils, linens, and single-service and single-use articles.

That would allow an argument for negligence per se on violations and could create potential criminal liability.