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The legal implications of bad food at a restaurant
Posted by: Charles J Fratus
February 17, 2011
Topic: The legal implications of bad food at a restaurant

Everyone has had at least one bad experience in a restaurant where the service or quality of food did not meet your standards. Over time we have come to expect and tolerate lower standards in the food service industry. Rarely does one walk out of restaurant with a feeling of satisfaction let alone that it was the perfect dining experience. While it is not possible to sue for bad service, the courts provide guidance on cases involving injuries due to bad food. One of the seminal cases relating to injuries caused by food in restaurants is Child's Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105, Md. 1938 in which a person was injured by a piece of tin stuck in a crab cake sandwich. The court discussed the different theories to impose liability on a restaurant.

The court explained why choosing the appropriate cause of action is so important by stating, "the question now presented is whether the restaurant keeper, in the serving of food, gives an implied warranty to the customer that its food is wholesome, free from injurious substances, of merchantable quality, and fit for human consumption. This question is so close and so greatly controverted that cases only similar in character are not helpful as precedents. To illustrate, a sharp distinction is made between the supplying of food in a restaurant, to be immediately consumed on the premises (together with those accompanying services afforded by the proprietor), and with those cases where food is sold in containers, or otherwise, to be taken away and consumed at some other time and place, or with suits against manufacturers, each class of such cases are the subject of much litigation and difference of opinion. There are numerous cases and diversity of opinion as to foreign substances or poisonous conditions of food contained in sealed cans, as well as upon the question here presented." Id. at 492. In other words, the facts of the case will determine whether there is support for a breach of implied warranty or negligence action.

The court held that typically a restaurant is liable under a theory of negligence and the case throughout the country "show the decided tendency in our state in dealing with cases of this character, not under the theory of contract, implied warranty and insurer, but under the theory of the want of due care and negligence. We hold that an action in tort in such cases as this affords to the injured person a convenient and adequate remedy, and disposes of the contention that the adoption of the negligence theory, rather than that of an implied warranty, would amount to a practical denial to those injured in cases from food adulteration, foreign substances, unmerchantable quality and injurious in their consumption. The theory of implied warranty, as previously pointed out, denies to the restaurant keeper an adequate defense; for, where it can be shown that he has served unwholesome food upon his premises, the obligations of an insurer is imposed upon him regardless of the care and prudence he may have exercised." Id. at 503.

Even though most people simply refuse to return to a restaurant because of a bad meal the courts clearly recognize a cause of action if the restaurant fails to exercise the reasonable care in furnishing and serving food. Unfortunately this will not eliminate the wobbly tables, lack of ice in a glass of ice tea, or the server who would rather be somewhere else but it is a start.

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Snow Days and the Wussification of America
Posted by: Charles Fratus
January 19, 2011
Topic: The Impact of Law on Snow Days

This is the first blog on the Fratusbrady law firm website. We will blog on issues directly relating to current legal events as well as issues with a broader impact on society. It seems like an appropriate time of the year to touch on the tort liability relating to snow and snow removal. The east coast experienced another snow "storm" that caused overly protective local and governmental officials to shutdown schools and governments not to mention created that immediate need to stock up on bread, milk and toilet paper. In Maryland, like many states, municipalities, generally, owe a duty to persons lawfully using public streets and sidewalks under its control to make such public ways reasonably safe for passage, but such duty is not an absolute one making municipality insurer of safe passage. Weisner v. Mayor and Council of Rockville 245 Md. 225, 225 A.2d 648 Md. 1967. A pedestrian, who seeks to recover from municipality for injuries sustained because of dangerous condition of sidewalk, must show that condition was more perilous than general condition of sidewalks throughout municipality and that particular situation had prevailed for such period of time that municipality should have known about it and failed to take steps to remedy it. Id. In some case, the courts may imposed a more stringent duty upon the owner of a commercial property to keep its property cleared of ice and snow than that imposed on a municipality.

It is easy to understand why governments and schools need to be cautious before, during and after snow storms but recently the threat of lawsuits have taken this to the extreme. Why is it that as soon as there is a threat of snow the schools and governments close the workers and students immediately drive to the local mall to shop or out to a restaurant to enjoy their snow/vacation day. What type of message is this sending to the students when a dusting of snow means they can't attend school yet there is not enough snow to sled. Everyone has heard the stories from their parents and grandparents about walking to school in five feet of snow and uphill both ways. You may hear how they attended or watched the 1967 NFL championship game played at Lambeau Field in Green Bay, Wisconsin, with the official game-time temperature of -15°F / -25°C, with a wind chill around -48°F / -44°C . Typically the tales are dismissed as being over exaggerated tales of hardship but the truth is that out parents and grandparents were not coddled in the manner we are in this day and age. Is it the "wussification" of America or the result of an overly litigious society? Either way, I can't wait to hear the tales of the current generation when they tell their grandchildren about being forced to walk to school in nearly an inch of snow or how the NFL game between the Viking and Eagles in Philadelphia, PA was postponed by snow. Pennsylvania Governor Ed Rendell said it best when asked about the game postponement, "I'll give you an idea of the wussification of America...have you ever watched those commercials for the most ordinary product, and after you're through hearing the disclaimers, thought: 'Who in the world would take that product?' ... We're so worried about liability." National Journal by Jim Sullivan, Dec. 29, 2010 the governor added. "Forget this football game; how many times have you seen schools close? Washington, D.C., closes with two inches of snow... We've lost our boldness, we've lost our courage, we've lost our pioneer spirit, we've lost our sense of adventure," Rendell continued. "I don't think Americans are willing to take prudent risks anymore." Id. It does make you wonder about the decisions our future leaders concerning the economy, laws or foreign relations. To think that it all stems from not walking to school in the snow.

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