Attorney Paul Newton Jr. clearly no longer joins the mantra of “Love that chicken from popeyes.” Newton is suing Popeyes Louisiana Chicken after he choked and required an emergency surgery. He had taken to great of a bite of his chicken and blames the chain for only supplying him with a combination spoon and fork, or “spork,” rather than a knife. I find the lawsuit dubious at best.
On November 1, 2015, Newton ordered two chicken breasts, red beans and rice, a biscuit and a soft drink. He returned to his office and began to eat the chicken with the spork. His complaint states “Because Newton’s order did not include a plastic knife,” the lawsuit says, “plaintiff Newton’s only option for consumption of the chicken breasts was to hold a chicken breast in his hands and to tear off pieces thereof with his teeth.”
He found himself at the Memorial Hospital at Gulfport where then surgically removed the chicken. His lawsuit suggests that the chain was negligent in failing to supply adequate utensils like a plastic knife. He is demanding damages for medical expenses, pain and suffering and any other damages shown at trial.
The lawsuit should in my view be dismissed and the chain could seek sanctions if it claims the filing to be frivolous. I do not see why the supplying of a spork is clearly negligent. It is possible to taken smaller pieces of a piece of chicken if you were inclined to use a utensil. The chain is likely to argue that the spork was for the red beans not the chicken.
Moreover, there is a plaintiffs’ conduct question. Most people eat fried chicken with their fingers, not utensils. More importantly, Newton determined how and how much he would eat. He elected to swallow the copious amount of chicken without properly chewing. Those any negligence would be met with a towering claim of comparative negligence.
Mississippi is a pure comparative negligence state with twelve other states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington). Under this approach, a plaintiff’s damages are reduced by his own negligence but (unlike a partial or modified comparative negligence state) there is not a fifth percent cut off for his own negligence. Thus, he could be 99 percent at fault and still collect one percent in damages if the chain is found negligent.
It will be interesting to watch the motion to dismiss litigation and decision of the Court.
What do you think?