pageok
pageok
pageok
A Poster Child Case for the Contributory (or at least Comparative) Negligence Rule?:

Via Drudge: An individual allergic to cheese claims to have taken every step possible to ensure that his McDonald's quarter pounder didn't have cheese on it--except opening the bun and looking at the burger before biting into it.

Caliban Darklock (www):
It might be productive for McDonald's to demonstrate that what they put on a quarter pounder technically isn't cheese.
8.11.2007 12:50pm
cirby (mail):
Sheesh. I'm not allergic to pickles, but when I order a Big Mac without them, I still check.

It's McDonald's!
8.11.2007 12:51pm
Brooks Lyman (mail):
For all McDonald's apparent negligence here, there are a number of interesting points, and the case is going to be interesting to follow.

There is a chain of many people involved in order-taking and food preparation in these fast-food restaurants; I'm reminded of the old kid's game of "Telephone." Not to mention the fact that many of the employees - perhaps not the "best and brightest" - become accustomed to doing things in the way most people want them, and manage to "sleep through" any changes. For example, order your soft drink without ice and see how often you get what you ordered....

I suppose that for health reasons (and regulations), it's company policy that employees down the line from the food preparers are not in any way to open packages or directly handle food, but in such a special circumstance, with so many apparent requests for "no cheese," one could hope that the pickup window person would take the initiative to open the wrapper and check.... No? Oh, well, there goes the old business.

On the other hand, it seems negligent on the part of someone who is aware that he has a severe allergy, to not double-check when there is any opportunity for food to accidentally contain the allergen: "Trust, but Verify." I suspect that he will, next time!

And of course, there is the question of whether the family (or some members of it) decided to gamble the son's health against a huge settlement from McDonalds, a well-known deep pocket.

As I say, an interesting case. Expect some changes in how restaurants (particularly fast-food restaurants) operate after this one, and also in health regulations, very few of which are likely to make eating out either more pleasant or less expensive for most of us.
8.11.2007 12:59pm
DaveHeal (mail):
In situations where eating cheese 'in a darkened room' may result in near-death, you'd think the dude would have just lifted up the bun and checked, if only to add more ketchup to what is usually a desiccated and nasty relative of the hamburger.
8.11.2007 1:17pm
Peter B. Nordberg (mail) (www):
I'm sure McDonald's is entitled, under the governing law, to raise a contributory fault defense of some kind -- if it wants to take the position that any reasonable consumer would dismantle a McDonald's "food" product after purchase, to confirm that the product is what McDonald's held it out to be, before reassembling it for consumption.

But if I were on the jury, I'd reject the defense. Bad enough to be eating something from McDonald's. Too much to ask that you take a peek at its innards before eating it. Who knows what you'll find in there? Something appetite-suppressing, is all we can know for sure.
8.11.2007 1:29pm
Sean O'Hara (mail) (www):
What's odd is that the first thing the family did when he went into anaphylactic shock was call not a hospital, but McDonalds to let them know they'd screwed up the order. Sounds a bit fishy.

Also interesting is that the damages being sought aren't just for the victim, but his family because they claim they risked their lives driving him to the hospital.
8.11.2007 1:29pm
Q the Enchanter (mail) (www):
"His mother Trela Jackson and friend Andrew Ellifritz are parties to the lawsuit because they say they risked their lives"

Is that enough to give them standing?
8.11.2007 1:41pm
Daniel Chapman (mail):
If they're allowed to claim emotional damages without physical harm, then sure.
8.11.2007 1:50pm
Mr. F. Le Mur (mail):
1. - If they guy was deathly alergic to cheese, he shouldn't even be eating at McDonalds, much less bothering to check.

2. - I hate cheese, pickles, mustard and mayo, and I've found the best way to NOT get something on a cheap burger is to tell them what you DO want, not what you don't want (tho this method probably works better when so many things are left out). I think they hear 'cheese' (or whatever) and miss the 'no' part.

3. - Bogus lawsuit. I hope the guy loses big time.
8.11.2007 1:58pm
Elliot Reed:
So he failed to take every step he possibly could have. This should reduce his recovery, but how exactly does it establish that McDonald's fuckup should be ignored?

Is not opening the bun even negligent? Isn't it typically obvious something is a cheeseburger from the outside,since cheese slices are different shapes from hamburgers? But I don't eat at McDonalds's so I can't say.
8.11.2007 2:12pm
Cenrand:
One of the great parts of this lawsuit is that Mcdonalds offered to pay this guys medical bills($1,400 - $1,399 more than this guy deserved) but he turned it down.

Hopefully this shakedown fails...
8.11.2007 2:26pm
David Chesler (mail) (www):
The article does the obligatory mention of Stella Liebeck, without mentioning the end of the story. (She didn't get the $2.9 mil.)

I expect coffee to be hot. I don't expect it to be significantly hotter than hot coffee normally is, and I couldn't normally check.

McDonald's screws up my orders a lot. Sometimes it's not practical to check until I get home, and from time to time the manager gives me an extra sandwich as compensation for the fact that I had to make a second round-trip (about 3 miles total) to get the order corrected, and that's fair.

We don't know how to check if the fryolator bath is really vegetarian, or if they've ever fried some meat in it, so my kosher-keeping friends don't assume that the fries aren't meat.

If I knew it was a matter of life-or-death (did Jackson? What was his prior reaction to cheese? Anaphalaxis implies it gets worse each time) I would open the bun, or ask somebody else to taste it first. McDonald's sets the thermostat on the coffee once, but as others have said, breaking the sandwich-making routine strains the available mental cycles.
8.11.2007 3:01pm
John Burgess (mail) (www):
So, now McDonalds will have to put a little piece of type on the wrappers, to the effect:


This food item was produced in an environment in which dairy products, wheat, sugar, eggs, and various spices and condiments are used. Cross-contamination is always a possibility. Consume at your own risk of allergic reaction.
8.11.2007 3:04pm
elliottg (mail):
Typically ignorant knee-jerk Volokh commentors who have no idea how allergies work. Not every exposure will yield a life-threatening anaphylaxis. Nor is the onset always immediate. He stopped at the first bite. The first thing you would do absent a reaction is to call the store and express your dismay/anger that they F-'d up the order. The call was cut short when the anaphylaxis occurred.
8.11.2007 3:11pm
Louis Villaescusa:
Having recently developed a chemical sensitivity myself, (to salicylates)I have become aware of the problems of trying to get a "special order" from a fast food place. I always do a quick check because it's much easier to do a quick check than break out in a rash.

Also with cheese, that's pretty easy to look for. Some people have allergies to compounds that are impossible to detect visually. I suspect these people don't eat out much.

Perhaps someday we'll be greeted by the little speaker saying, "Welcome to McDonalds. Can you please sign the release of liability form so we can take your order."
8.11.2007 3:13pm
kimsch (mail) (www):
One of the first things that came to mind was the fact that a "Quarter Pounder" doesn't come with cheese. You have to order a "Quarter Pounder With Cheese" to get it.

So since he had "clearly ordered two Quarter Pounders without cheese" perhaps the order taker didn't hear the "out" portion. When cheese is an "opt-in" item it is reasonable that the order taker heard "with" instead of "without".

Also who is allergic to "cheese" as a specific entity? He's allergic to some component of cheese, maybe the dairy, and that should preclude eating out pretty much anywhere, let alone a large chain such as McDonald's, especially if he's that strongly allergic.

I can almost see someone allergic to something ordering from a deep pocket restaurant and then adulterating the product to ensure a reaction.

Not almost, I can definitely see adulterating food for a chance at a deep pocket. Fingers in chili, mice and needles in cans or bottles of pop, other stuff...

What a sad world we live in.
8.11.2007 3:17pm
Observer (mail):
This case should never go to a jury. The facts are undisputed. He said hold the cheese, they didn't, he didn't check, and he had an allergic reaction. The judge should decide as a matter of law whether or not on those facts, either the defendant violated a duty of care to the plaintiff or, if it did, whether the plaintiff's failure to inspect his food before eating it constitutes a defense of contributory negligence.

I realize that in most states, the jury would get to decide these legal issues, but that is precisely what's wrong with the civil "justice" system in this country.
8.11.2007 3:18pm
DiverDan (mail):
Another ridiculous lawsuit, another example why the "American Rule" on Attorneys' Fees (i.e., winner cannot recover, unless there is a statutory or contractual exception) leads to gross economic inefficiency (for example, over use of the court system, higher demand for jurors, and too many personal injury lawyers, not to mention excessive insurance premiums and the higher costs of consumer goods necessary to cover those costs). If a jury were permitted to award the Defendant all of its attorneys' fees any time the jury determined that bringing the lawsuit was not substantially justified, a lot of "strike suits" like this would stop clogging up our courts, and some personal injury lawyers might actually go into productive pursuits.
8.11.2007 3:31pm
pete (mail) (www):
Exactly how is Jackson to prove that this was Mcdonald's fault in the first place? How do we know that he did not put the cheese on the burger himself afterwards or have someone get a burger with cheese from another McDonalds?

He has 10 million reasons to lie about this.

I have a lactose intolerant relative who always checks for cheese when ordering at a restaurant and it is not that uncommon for restaurants to mess up her order even when she bluntly tells the waiter to make sure there is no cheese on it because it will make her sick. Of course she always bothers to look at her food before consuming it and her response to cheese is mild discomfort, not the threat of anaphylactic shock and death. And the people I know with peanut allergies will not even enter restaurants they know use peanuts or peanut oil (no chick-fil-a for them).

Take two seconds to open up the damn burger if you are going to die from eating some cheese.
8.11.2007 3:57pm
Reuben (mail):
1.In my experience, McDonalds doesn't put cheese on unless asked. Added expense, razor thin margins.
2.Drive thru speakers are notoriously bad. "Quarter Pounder (hiss) Cheese" is what the grill will hear. A fact known well enough to not be an unusual Hollywood gag.
3.Cash handlers are forbidden by health codes to handle (unwrapped) food products.
4. McDonalds is notorious for not giving food the way people order, to the point that other fast food companies have built their advertising on the fact. McDonalds has not made public claims to deny their competitors' claims, in effect advertising that they do not reliably give burgers "your way."
5. The plaintiffs emphasize that on multiple (at least 5) occasions they iterated "no cheese." This means that they had a strong (five times?) expectation that no matter how many times they requested no cheese, cheese would appear. If they had such a strong expectation, why then did they not check? A reasonable person demonstrating such strong suspicion would check.
6. As mentioned in a previous post, the first action was to call McDonalds, though the adverse reaction was supposedly immediate. Is not then the risk while rushing to the hospital due to the poor judgment of the phone call priority? It also leads one to question the immediacy and severity of the reaction.
7. The news article I read claimed the Emergency Room bill was $700. If true, how does that reflect on the seriousness of the allergic reaction? The last time I took anyone to the emergency room, it cost nearly $30,000, and they released him within an hour (it was a very early morning weekday) without any service performed except an MRI, which found nothing. It would cost most people $700 or more just to walk in the door, ask for an examination and walk out again.
8. As others have mentioned, there is always the possibility of cross contamination. At the high school kitchen in our town, cheese slices were banned from the kitchen entirely on cross contamination fears with one student in the school being allergic, and peanut butter before that even though no students in the school were allergic. And the school only hires older trained workers. Would a reasonable person, knowing they had a deathly allergy, trust a young non-skilled worker to give a fully clean sandwich? Wouldn't he be afraid they would just pull cheese off the burger?

This sounds either like a planned shakedown, or an example of negligence on the part of the young man and his mother who had full knowledge of the allergy.
8.11.2007 4:04pm
A Northwestern Law Student:

A Poster Child Case for the Contributory (or at least Comparative) Negligence Rule?

Not if the theory of liability is that the product was defective, I would think. (I could also envision a suit based on a breach of the implied warranty of merchantibility, or even possibly on the implied warranty of fitness for a particular purpose.) For one thing, proof of fault would be unnecessary. Moreover, under Rest. (2d) Torts 402A, ordinary contributory negligence is not a defense at all in a products-liability action where the plaintiff merely failed to discover the defect or guard against its existence. I wouldn't think that the mere fact that "McDonald's screws up orders all the time" would impose a heightened duty of inspection on the plaintiff. Comparative negligence can still reduce liability in such a case, though, but I can't claim to know anything about West Virginia tort law, I don't know which doctrine they would apply.

Of course, it wouldn't be easy to show that the burger was actually defective, since that generally requires proving that it was dangerous beyond the expectation of the ordinary consumer. I don't know the answer here, but there are cases that have applied high standards for warnings where the group allergic to a specific thing is sufficiently large. I will point out that I don't think accidentally adding cheese here is any different from a case where the employee accidentally added peanuts to the burger, and the plaintiff turned out to be highly allergic to peanuts.

Anybody with a better knowledge of products liability is welcome to chime in!
8.11.2007 4:04pm
Old33 (mail):
My favorite thing about this article is this little line thrown in there by the staff writer near the end:
<blockquote>
The fast-food giant has been sued before.
</blockquote>
Ya think? Shoot...do a docket search of the state courts in West Virginia alone, and you'll find at least a dozen active cases against McDonalds at any given time.
8.11.2007 4:42pm
Just Dropping By (mail):
One of the first things that came to mind was the fact that a "Quarter Pounder" doesn't come with cheese. You have to order a "Quarter Pounder With Cheese" to get it.

I don't order burgers at McDonald's, so I can't speak to that specific chain, however, I do frequently get Whoppers at Burger King. Notwithstanding the fact that a Whopper does NOT ordinarily come with cheese (it's 25 cents extra, IIRC), about 1 out of 5 times they sua sponte put cheese on the burger. Then the counterstaff act like I'm some sort of freak when I demand a replacement since they seem to think I should be grateful for having gotten free cheese.
8.11.2007 4:49pm
PJH (mail) (www):
Bernstein, spoken like a member of the defense bar. You kill joy.
8.11.2007 5:04pm
cirby (mail):
Of course, the first thing McDonald's needs to do is find out if anyone else in that family ordered a cheeseburger, which would move the error into whoever in the family handed it to him.

...and, as a side note, the majority of people who order burgers order them with cheese on them. So a common error when making burgers is to accidentally slip a slice of cheese on them - or put the cheeseburger into a hamburger wrapper, which ends up in a non-cheeseburger order.

If you've lived your life for even a while with a deathly allergy to ANYTHING, you learn to make those tiny little inspections that keep you from, you know, dying.
8.11.2007 5:05pm
Mr. Impressive (mail):
Should the consumer have checked their burger? Of course.

What this has to do with preferring contributory negligence over comparative negligence, I don't know.

If I were on the jury, I would argue that McDonalds is 50% negligent and the consumer 50% negligent and cut the damages asked for in half.

Contributory negligence is a dumb idea, and we have wisely decided to nix that doctrine in most states. That one person has less than perfect behavior should not excuse the less than perfect behavior of others, where they all contributed to the problem. Instead, everyone should take responsibility for the consequences of their own less than perfect behavior. Comparative negligence accomplishes that -- everyone takes responsibility. Contributory negligence means that negligent people take no responsibility.

This case is definitely a good example of why we should prefer comparative negligence.
8.11.2007 5:33pm
Joe123 (mail):
Leaving the case aside, it's surprising the contempt shown in these comments for normal Americans. McDonald's is probably the most popular restaurant in the country. Believe it or not, this is because millions of us see McDonald's as serving good food at reasonable prices. We don't all have expense accounts to charge our meals at Per Se to.

Even if many of you really are such assholes, which I don't doubt, it's remarkably tone deaf to not realize how this comes off. Maybe it's because so many Volokh readers are insulated from working-class Americans?
8.11.2007 5:38pm
Mr. Impressive (mail):
Joe123,

Good point. Many of the commenters here do seem to be harsh jerks with knee-jerk anti-consumer sentiments. But what do you expect, they are mostly Republicans.
8.11.2007 5:44pm
Joe123 (mail):
Mr. Impressive, I think you're misinterpreting my comment. I agree the lawsuit seems without merit. Also, I'm a Republican myself. My point was just that consciously or not, people were making statements that seemed elitist, at least to me.
8.11.2007 5:56pm
Mr. Impressive (mail):
Why is the lawsuit without merit? Are you saying that McDonalds was not negligent in serving a burger with cheese when they were asked 5 times to not put cheese on the burger?

I do not see how anyone could defend this as reasonable. If your customer asks you 5 times to prepare food without a certain ingredient, it is unreasonable to serve them food with that ingredient (absent a refusal to serve).

As far as elitism towards McDonalds, I think such sentiments are entirely justified. We would be better off if they just went out of business.
8.11.2007 6:03pm
Rubber Goose (mail):
elliottg,

Mmm...that's good satire!



er..at least I hope it is.
8.11.2007 6:25pm
pete (mail) (www):
After rereading the article it does not sound like they informed the McDonalds employees why they did not want cheese. Did they just say "a burger without cheese" or did they say "make sure my burger does not have cheese because it will make me sick". Is it reasonable to expect the McDonald's employees to know that accidentally serving someone some cheese could kill them if the customer does not inform them of that? The vast majority of customers who make menu requests do so because of taste concerns, not because they will die if the restaurant messes up the order.
8.11.2007 6:29pm
Mr. Impressive (mail):
pete,

A huge corporation like McDonalds who serves food day-in day-out should be aware that some customers make requests due to allergies. They should train their employees that getting orders right is very important for this reason.

And you know what, getting the order right for customers without alergies is not such a bad idea either.
8.11.2007 6:33pm
Peter B. Nordberg (mail) (www):
The disparagement of McDonald's doesn't rest on snobbery or affectation. Decent, unpretentious food can be had inexpensively in America. Many of us live on it every day. And I don't mean Brussels sprouts. The problem with McDonald's is that its inexpensive, unpretentious food isn't very good. Compare real cheeseburgers with QPWC's.

Um, what's Per Se?
8.11.2007 6:33pm
Peter B. Nordberg (mail) (www):
pete,

From the article: "Jeromy did his part to make it known he didn't want cheese on the hamburgers because he is allergic, Houston said. He told a worker through the ordering speaker and then two workers face-to-face at the pay and pick-up windows that he couldn't eat cheese, Houston said."
8.11.2007 6:35pm
PersonFromPorlock:
elliottg:

Typically ignorant knee-jerk Volokh commentors...

I resent that! I am the official ignorant knee-jerk Volokh commentor: accept no substitutes!
8.11.2007 6:35pm
Joe123 (mail):
I'm not a lawyer, so can't comment on legal definitions of negligence. But to me, negligence suggests a recklessness or disregard for dangers caused to others, specifically dangers that could be prevented by taking reasonable actions, actions that the endangered might reasonably assume had in fact been taken.

Under this definition, it's not clear what reasonable actions McDonald's, as a corporation, could take to avoid similar incidents. Similarly, it seems unreasonable for the consumer to expect McDonalds to have taken extraordinary measures to prevent misplaced cheese, especially given the obvious knowledge that McDonald's employs mostly low-skilled, often non-native-speaking workers. That's why I lean toward thinking the suit is without merit.
8.11.2007 6:56pm
Mr. Impressive (mail):
Joe123,

Well, here is a first lesson in torts. Negligence need not rise to the level of recklessness. All that is needed is carelessness.

Recklessness is often conceptualized as negligence-plus.

The question always is what would a reasonable person do under the circumstances. Would a reasonable McDonald's employee put cheese on the burger after they receive a specific request for no cheese? After 5 requests?

Answer: No. A reasonable person does not put cheese on a burger in that situation. Hence, it was negligent for the McDonald's employees in question to put cheese on the burger.
8.11.2007 7:08pm
Joe123 (mail):
Then maybe the suit should be against those particular employees, not the entire corporation?
8.11.2007 7:15pm
Cenrand:
The question should be whether a reasonable person, in the same position as the plaintiff, would take the step of checking the quarter pounder before eating it?

In this case, a reasonably prudent person, with a severe allergy to cheese, would double-check their burger, not consume it blindly in a dark room.

All this plaintiff is going to succeed in doing is getting a bunch of unlucky Mcdonalds employees fired from their jobs, when they aren't any worse then the million or so other people employed in fast food.
8.11.2007 7:26pm
DavidBernstein (mail):
I agree that the elite, or at least a segment of it, has contempt for McDonald's, and other "fast food." As a law student, among the many things one could do that would show that you didn't understand how to "fit in" was to invite people to eat at McDonald's, and drive an American car.
8.11.2007 7:41pm
Mr. Impressive (mail):
Mr. Bernstein,

People look down on fast food restaurants for good reason. Fast food will make you fat and make you die of a heart attack. Yes, you can eat in an unhealthy way at other restaurants, but fast food joints tend to be especially bad and tend not to have very many healthy items on their menus compared to other restaurants.

I think these places have started putting some other stuff on their menu, like salad. But I have heard they do not do a particularly good job on these items.

The bias against fast food is justified.
8.11.2007 7:57pm
Mr. Impressive (mail):
Joe123,

Under the doctrine of respondent superior, employers are responsible for the negligence of their employees. As they should be. The employer should be ensuring that employees are adequately trained and supervised so that they do not harm customers or the general public.
8.11.2007 7:59pm
Mr. Impressive (mail):
Cenrand,

First, you are right that the negligence of the consumer is relevant. But that does not excuse the negligence of McDonalds. What we should do is lower (not eliminate) the damages to account for the negligence of the consumer in this case.

Second, I do not know why you have such a disparaging view of fast food employees that you think that getting this wrong after being asked 5 times is normal.

Third, if these employees are fired it is not like it will be hard for them to find another low paying job. These sorts of jobs, which pay next to nothing, are not hard to come by. (And firing these employees is totally up to McDonalds. Firing these employees will not result in paying less damages in this case.)
8.11.2007 8:19pm
Waste (mail):
I do not like cheese and when ordering at any burger joint always make sure to ask them no cheese. Frequently they get it wrong, especially at McD's. McD's seems to be the worst at getting it wrong. I've sent one back five time before they got it right. You wouldn't think a Quarter Pounder no cheese, ketchup and mustard only would be that difficult. But factor in the number of burgers they make and they get into a habit of making them all the same way. That means cheese on the quarter pounder.

As for when ordering. If you look at the menu, you will see quarter pounder with cheese, you won't see just quarter pounder. At least that has been what I've seen for at least the last decade.

That aside it isn't that hard to check for and I do it before leaving the drive thru window. It isn't hard to check. Cheese is very easy to spot and you can usually tell just by lifting the top of the bun. If there is cheese it's usually already melted and the top sticks.

Maybe McD's messed up. Wouldn't doubt it. But the person should have taken some initative and actually looked at the burger. Especially knowing McD's reputation and his allergies.
8.11.2007 8:28pm
Toby:
Asked 5 times. Well ordering it is once. Asking at the window? When the guy has a bag already filled with things? A bag that he has been trained not to poke around in, because he hadnles money, some of the most unsanitary objects on the planet?

Some of you are demonstrating not only an impressive lack of knowledge of the real world, but of basic food safety techniques. Perhaps you can sue bacteria next for their unauthorized activity.

I have food allergies. They run in my family. Not one of us would ever have asumed that all society is somehow responsible for our own personal quirks.
8.11.2007 8:29pm
neurodoc:
The last time I took anyone to the emergency room, it cost nearly $30,000, and they released him within an hour (it was a very early morning weekday) without any service performed except an MRI, which found nothing.
If that were true, it would deserve to be noted in the Guinness Book of Records.
*****************

Answer: No. A reasonable person does not put cheese on a burger in that situation. Hence, it was negligent for the McDonald's employees in question to put cheese on the burger.
Open and shut case on negligence? I think not.
****************

Then maybe the suit should be against those particular employees, not the entire corporation?
Nope, it doesn't work that way. And would you want it to, leaving the business owner to take the profits (maybe greater because of reduced insurance costs) and the employee to answer lawsuits like this one in their personal capacity? Unless the injury came about because the employee was doing something clearly other than what he/she was employed to do, maybe while off on a frolic or folly, the employer will be answerable for the employee's negligence.
****************

"anaphylaxis": potentially life threatening, but the term is used by some to describe acute histamine-mediated allergic reactions of lesser severity.

This kind of thing wouldn't happen at a Burger King, where I go once or twice a year for a Whopper and fries. (I generally feel a bit queasy an hour later and reproach myself for the lapse in judgment.)
8.11.2007 8:45pm
NicholasV (mail) (www):
The question in my mind is, is a mistake that any one of us could easily have made even when trying our best really "negligence"?

We all make mistakes.. some more than others.. some take more care. But even those of us who take a lot of care will still make the occasional mistake. Unless there is a mechanism for checking and correcting mistakes (such as a system where a second person must always check that the burger has been correctly assembled before passing it on), there is a virtual guarantee that there will be the occasional mistake. So, does that mean we're all negligent?

I'd say that a mistake would have to be due to an unusual level of carelessness before it becomes "negligence". In this instance, I don't know what happened, but if highly trained doctors can make mistakes (and they do), I would say as a customer I would enter with the expectation that the McDonalds staff are going make a mistake, not that they aren't.
8.11.2007 8:56pm
NicholasV (mail) (www):
Actually, let me rephrase that. A mistake involving carelessness might be "negligence", a mistake involving an unusual level of carelessness might be "gross negligence". A mistake made while taking all precautions is just a mistake. Although, IANAL, so maybe that isn't true in a legal sense.
8.11.2007 9:00pm
PatHMV (mail) (www):
Like commenter Waste, I eat all too regularly at McD's. The fries are still good, and the burgers have actually improved in the past couple of years, depending on the particular restaurant. As he notes, several years ago they got rid of the simple Quarter Pounder and replaced it with the Quarter Pounder with Cheese. I figure they bumped up the price back when to include the cheese, and they don't give you a discount if you ask for it without the cheese, so they come out ahead on the people who don't like cheese.

I don't like cheese, and in fact order my burgers plain, just with the meat and the bread. I learned a long time ago to check my burger before sitting down or driving away from the pick-up window. About once in every 10 orders or so, they'll have put cheese on it, because that's their habit. It ticks me off a bit, but I understand that you can't get much better help than that if they keep the price so low.

All the people who want to stick it to McDonald's really want to stick it to me and Waste, and all the other McDonald's customers out there. They'd rather increase the costs on the poor who eat at McDonald's than expect someone with a potentially deadly allergy to take 2 seconds to lift up the bun and LOOK for the cheese. Expecting McDonald's employees to get the order right, no matter how many times you tell them, would be gross negligence, in my view. No reasonable person should assume that their order will be exactly correct.

One of the reasons for imposing tort liability on businesses is to properly allocate costs and risks to those most able to reduce those risks. Where a car company could reduce a particular risk substantially by installing a 50 cent part, and decide not to, then they should bear the costs of that decision, since they are in the best position to avoid or reduce the risk; the customer could not easily or cheaply install that extra part.

But here, the cost of double-checking the burger is non-existent for the customer, and he, not the restaurant staff, is most aware of the risk. Thus, he and his family should bear that risk, not McDonald's.
8.11.2007 9:28pm
neurodoc:
All this about McDonald's and no one has made reference to Supersize Me?! (No question of either comparative or contributory negligence there, since that fellow knowingly assumed the risk of eating at McDonald's, persisting even as his doctors told him that the evidence was there that he was harming himself. But, of course, he was doing it for the sake of Art, and he did make his nutritional point more vividly than most public service advertising does.)
8.11.2007 10:13pm
Cenrand:
Mr Impressive -

"First, you are right that the negligence of the consumer is relevant. But that does not excuse the negligence of McDonalds. What we should do is lower (not eliminate) the damages to account for the negligence of the consumer in this case."

Therein lies the whole comparative vs. contributory negligence distinction. While I generally favor a comparative negligence regime, I think at a certain point, one party is so predominantly at fault the other party should be excused for minimal negligence.

And I do not at all think it is disparaging towards fast food employees to think that they make mistakes. Certainly I would make a ton of common mistakes like in this case every day.

Think of it like this - The average fast food worker serves hundreds of people each day. The average fast food consumer eats there at most once a day (being generous). Given this, it seems quite prudent for the consumer to double-check their food order. This is why most customers do in fact double-check there orders at these types of restuarants. To not do so, *especially* when one has a serious food allergy, seems grossly reckless (and more than a little bit fraudelant).
8.11.2007 10:58pm
NickM (mail) (www):
Isn't eating in the dark just a bit reckless?

Nick
8.11.2007 11:00pm
A Northwestern Law Student:
I'm amazed to see all the people on here arguing about negligence, since, as I posted above, I think a products-liability theory not requiring proof of fault is much more likely in this case. As far as negligence goes, though, the duty factor would seem to be met (see below), and when you're asked (five times!) not to put cheese on something, putting cheese on it seems also to be pretty clearly below the standard of reasonable care. Obviously there was actual causation as far as Jeromy Jackson's injuries go; and this guy was a foreseeable plaintiff, since he was the one who ordered the burgers, so there is proximate causation as well.

And that's negligence. The mere fact that the victim was an eggshell plaintiff makes no difference to the negligence analysis.

Actually, duty is probably the most difficult of the elements to establish. There has to be a foreseeable risk of injury to someone in the plaintiff's position. But isn't this foreseeable with cheese? Set anaphylaxis aside -- we don't know how common dairy allergy is (although I know at least two people who have it). It is enought that lactose intolerance is common (assuming McD's cheese contains lactose). The fact that negligently putting cheese on a burger could foreseeably give someone with lactose intolerance a stomachache is enough to establish that there is a duty not to do so -- the fact that Jeromy Jackson got way more than a stomachache just calls for application of the eggshell plaintiff rule.
8.11.2007 11:29pm
A Northwestern Law Student:
Just to make two other quick points:

1. Although, if the facts are as they have been presented, I think McDonald's would properly be held liable under current law, I express no judgment on which is less healthy for American society: modern tort law, or McDonald's hamburgers.

2. Some have argued above about which of the employees actually made the mistake: a burger-flipper who wrapped a cheeseburger in hamburger paper, a cashier who miscommunicated the order, or whatever else. I don't think it would matter. Assuming Jackson could prove that he did clearly order the burger without cheese, it's a pretty straightforward application of the res ipsa loquitur doctrine to say that, although we don't know exactly what happened behind the counter, Jackson could not have been handed the wrong burger without some kind of negligence on the part of at least one employee. That would suffice on a negligence theory of this case.
8.11.2007 11:37pm
PatHMV (mail) (www):
Northwestern... that's not correct. It only establishes that a mistake was made. Whether that mistake was negligent is another question entirely.
8.11.2007 11:52pm
A Northwestern Law Student:
PatHMV: you're right, of course. When I said "That would suffice on a negligence theory in this case," I meant coupled with what I had said in my previous post -- i.e., that it would suffice to prove breach of duty. Good catch.
8.12.2007 12:08am
gahrie (mail) (www):
As a former fast food employee and store manager, let me suggest that you always inspect your food, ....unwanted cheese should be the least of your worries.....
8.12.2007 12:26am
Joe123 (mail):
As an engineer, I'd be surprised if MdDonald's or any similar chain could significantly reduce (say by 95%) the botched order rate without increasing prices by at least 10%. (I'm basing this mostly on intuition and experiences dealing with large organizations.) I doubt even the (prohibitively expensive) proposed addition of a special order verifying worker would be effective.

Certainly relative costs like these must factor into the legal analysis, no?
8.12.2007 12:50am
Mike Rentner (mail) (www):
What is the duty of care owed by a restaurant to its patrons?

We would all like to think that we can order up exactly what we want at a restaurant and get it, but even when there are waiters that work for tips directly from the patron, mistakes are still all too common. Go ahead and try ordering Chinese food without MSG.

Would any reasonable person expect that special orders at a busy fast food restaurant would result in perfect compliance with the request when even more upscale restaurants are often unable to do so?

Even in a comparative negligence jurisdiction, the patron would seem to carry at least 51% and probably a lot more of the burden of ensuring that the order was correctly supplied before shoving it in his maw.

The $10M claim is absurd and not based on real damages. If anything, damages couldn't possibly be more than a couple thousand dollars, and if the jurisdiction allows awards with less than 50% or 51% liability then it still wouldn't pay for lawyers fees.

But it plays well in the press.

By the way, there's a reason why McDonalds makes a lot of money, and it's because a lot of people like the food, and find it very convenient. Whether people here like their food or not is entirely irrelevent to anything except their ability to sound holier-than-thou for not approving of them.
8.12.2007 12:56am
John Burgess (mail) (www):
Just a couple of points:

First, as someone noted above, the standard Quarter Pounder today comes with cheese. It is a special request to get it without cheese.

Second, has anyone actually worked--or even looked--at how McDonalds production line works?

From the grill station to the assembly/wrapping station, then on to a bin where items are put in a bag (or on a tray, if eating in). There is room for a mistake at each of several steps. Even if the person taking the order accurately heard and conveyed the 'no cheese' order; if the cook properly prepared a no-cheese burger; if the wrapper correctly packaged the item; that burger still went into a bin where it was grabbed and slammed into a bag. The person bagging the item didn't take the order, didn't hear the special request. He reached into a bin and grabbed something and tossed it into a bag. Erroneous? Sure. Negligent? No so much.
8.12.2007 1:13am
theobromophile (www):
I'm a vegetarian. I usually glance at my food to ensure that it does not contain chunks of meat before I bite into it. Sometimes, when my dining companions are favourably disposed to me, they will sample questionable foodstuffs for me. (Or, as one friend put it, "Yum, that's tasty - definitely not tofu!")

My food allergic, celiac's, and Crohn's friends all check their food before eating. The only other reasonable option is to hire a personal chef. From an informational perspective, it's much easier for the person with the restricted diet to check food for compliance than for the person who is unaware of the nature of the restrictions to check the food.
8.12.2007 2:15am
neurodoc:
Actually, duty is probably the most difficult of the elements to establish. There has to be a foreseeable risk of injury to someone in the plaintiff's position. But isn't this foreseeable with cheese? Set anaphylaxis aside -- we don't know how common dairy allergy is (although I know at least two people who have it). It is enought that lactose intolerance is common (assuming McD's cheese contains lactose). The fact that negligently putting cheese on a burger could foreseeably give someone with lactose intolerance a stomachache is enough to establish that there is a duty not to do so -- the fact that Jeromy Jackson got way more than a stomachache just calls for application of the eggshell plaintiff rule. (italics added) [A Northwestern Law Student]
"Duty" comes first. If it is not present, the analysis need go no further, because the D will not be held legally liable for P's injury. If "duty" is present, then one goes on to ask if there was "negligence" on D's part; and if there was "negligence" on D's part, then was there "causation," that is a true nexus between the D's "negligence" and the P's alleged injury. Whether there was a "duty" rests on the relationship between the parties, not on "foreseeability" of an injury of the sort claimed as a result of what the P asserts was negligence on the D's part. This case may ultimately go nowhere, but I think it very unlikely that a judge would conclude there was no "duty" owed the P by McDonalds and grant summary judgment for the D.

Imagine a customer with an allergy to cheese ordered a QuarterPounder without cheese, but was given a QuarterPounder with cheese that would almost certainly caused them grievous harm had they eaten it. Before they could eat what they were given, however, a thief, who improbably enough also had a cheese allergy, stole that QP with cheese, perhaps thinking it was one w/o cheese because of the wrapping. Thief eats the purloined cheeseburger (where's John Belushi?), goes into anaphylactic shock, and is rushed to the hospital by the police after finding him/her near death, struggling to breath. If the customer who ordered and paid for a QP w/o had eaten the QP that the McDonald's employee negligently prepared for them, and that customer had suffered the same harm that the hapless burger thief suffered, then said customer would have had a cause of action against McD because McD clearly owe the customer a duty of care, that is to act non-negligently where the customer was concerned. The thief, or thief's estate, could not sue McD's, though, because McD's owed no duty of care to the thief, who effectively came from nowhere, unexpectedly and unforeseeably, to steal the cheeseburger. (Probably the same result, that is no "duty," if rather than a thief, someone else with a cheese allergy thought the burger was an abandoned one, ate it, and was seriously injured as a result.) Though the cheeseburger that should have been a QP w/o that injured the thief was negligently prepared with cheese by the McD employee and the harm that might have been foreseen did in fact come about as a result of said negligence, no "duty" came about in "retrograde" fashion, because "duty" is an upfront or precursor matter, not something that arises after negligence. (So, in case of thief, "negligence" + "causation" + "injury," but no D liability, since no "duty.")
8.12.2007 2:31am
A Northwestern Law Student:
neurodoc wrote:
Whether there was a "duty" rests on the relationship between the parties, not on "foreseeability" of an injury of the sort claimed as a result of what the P asserts was negligence on the D's part.

That's not right. "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." Rest. (2d) Torts ยง 282. First, there doesn't have to be any relationship between the parties for there to exist duties between them. Second, "foreseeability" of the type of harm (not of the type of plaintiff) is relevant to duty, because it goes to what is an "unreasonable risk of harm." I mean "foreseeability" objectively, of course.

"Duty" comes first. If it is not present, the analysis need go no further, because the D will not be held legally liable for P's injury. If "duty" is present, then one goes on to ask if there was "negligence" on D's part; and if there was "negligence" on D's part, then was there "causation," that is a true nexus between the D's "negligence" and the P's alleged injury.

I know, and I thought my post reflected that by listing duty first (though reserving discussion for a later paragraph). I'm not sure if you're disagreeing here. I should point out that my view is that the duty is not to serve cheese to someone who asks for no cheese.

This case may ultimately go nowhere, but I think it very unlikely that a judge would conclude there was no "duty" owed the P by McDonalds and grant summary judgment for the D.

I agree completely. The claim for punitive damages and for the distress of the family members who had to rush Jackson to the hospital, however, will surely be dismissed.
Imagine a customer . . . .

I agree with your conclusion to this hypothetical, but I think the analysis is wrong. Imagine instead that McDonald's served a hamburger with shards of broken glass in it to the customer, and that again the thief steals and bites into it. I think McDonald's is liable on a negligence theory (and they're certainly liable in products liability). There's a duty not to serve glass-containing burgers to anyone. The fact that the victim was a thief makes him possibly an unforeseeable plaintiff (though probably not in my opinion), but this would go to proximate causation, not duty. As I have said, duty does not require a relationship between the parties.

With cheese, as I have posited above, the duty is not to serve cheese to someone who asks for no cheese. This is because many people want cheese and few will be injure by it, while no one wants glass and anyone would be injured by it. McDonald's owes this duty to everyone, including the thief. The problem here is, since the thief did not ask for no cheese, McDonald's didn't breach its duty to him. So the case turns on breach of duty, not duty. In short, in this case McDonald's had a duty to the customer and breached it, but there was no causation and no damages; and there was causation and damages as to the thief, but while McDonald's owed him a duty it did not breach it.
8.12.2007 3:21am
David M. Nieporent (www):
Typically ignorant knee-jerk Volokh commentors who have no idea how allergies work. Not every exposure will yield a life-threatening anaphylaxis. Nor is the onset always immediate. He stopped at the first bite. The first thing you would do absent a reaction is to call the store and express your dismay/anger that they F-'d up the order. The call was cut short when the anaphylaxis occurred.
Drive through fast food outlets have screwed up my order many times over the years. Not once in my life did it ever occur to me to call them up.

In fact, anybody who has ever been to the drive through (or seen Lethal Weapon 2) knows that one checks one's order because it is not uncommon for the minimum wage employees to make mistakes. The idea that someone who had a life threatening allergy wouldn't check is... not credible.


Second, I do not know why you have such a disparaging view of fast food employees that you think that getting this wrong after being asked 5 times is normal.
Actually, that just serves to make his story less credible. If you think they're going to get it right, you tell them once. Maybe you remind them once. But you don't do it five times, unless you think they can't be relied upon. And if you think that, there's no way you don't check.


One of the first things that came to mind was the fact that a "Quarter Pounder" doesn't come with cheese. You have to order a "Quarter Pounder With Cheese" to get it.
Not exactly.
1) It isn't true that you have to ask; the exact opposite, in fact. They're trained to up-sell. If you ask for a QP, they'll say, "Do you want cheese with that?" And half the time you say No and you get Yes.
2) Even if the issue never arises, they may just pick up the wrong sandwich from under the heat lamps and put it in the bag without checking.
8.12.2007 8:30am
ALAN:
I'm an American. I try to see any situation from all the angles, as much as possible. McDonalds food is not the best out there, and their staff don't generally seem all that intelligent. There are exceptions, of course, but typically, you won't meet a member of MENSA behind a cash register at a burger shack. I also consider myself as a realist --- a person that sees things for what they are, not for what I might wish they were like. So, this is my point.....when I place a food order with McDonalds, I assume it will be, in some way, wrong. I EXPECT it to be wrong. I'm an American, by god, and I don't have very high expectations of accuracy from McDonalds. Nor should any of you, if you look at things realistically. "I wish it was like this......", "I think it should be like that......". That's all well &good, but come on......face the reality of the day. It's fine, noble in fact, to hope and dream for a better tommorrow, but in the here-and-now, McDonalds sucks. Any intelligent person, or reasonable human being should be able to see that. And if you can see that clearly, YOU should also EXPECT your order to be wrong. I cannot possibly be the only person on the planet that feels this way. It IS McDonalds, you know?
8.12.2007 11:37am
ALAN:
If my order is, by some miracle, completely accurate, I suspect foul play.
8.12.2007 12:02pm
Ken Arromdee:
Similarly, it seems unreasonable for the consumer to expect McDonalds to have taken extraordinary measures to prevent misplaced cheese, especially given the obvious knowledge that McDonald's employs mostly low-skilled, often non-native-speaking workers. That's why I lean toward thinking the suit is without merit.

By this reasoning, it's unreasonable to expect measures taken to stop medical malpractice, if the company in the question hires janitors to do surgery because they're cheaper than physicians.

Saying "McDonalds won't hire workers who won't mess up orders, because it's too expensive" really isn't an answer.
8.12.2007 1:04pm
Brian G (mail) (www):
Observer said:


This case should never go to a jury. The facts are undisputed. He said hold the cheese, they didn't, he didn't check, and he had an allergic reaction. The judge should decide as a matter of law whether or not on those facts, either the defendant violated a duty of care to the plaintiff or, if it did, whether the plaintiff's failure to inspect his food before eating it constitutes a defense of contributory negligence.


Wow! You gotta be a guy who just finished his first year of law school. No discovery, just right to a decision, as in your view, the allegations in the complaint are dispositive. I wish it were that easy.

Let me give you the quick overview of how it works. Whether a duty exists is a question of law. Whether one violated that duty and whether that violation is a proximate cause of Plaintiff's injuries is almost always a question of fact for the fact-finder (i.e. jury or bench trial judge). And, the apportionment of negligence is a question for the fact-finder as well.

Time to get an externship at a law office. In your case, a civil defense firm would be the way to go.
8.12.2007 2:35pm
markm (mail):

Second, I do not know why you have such a disparaging view of fast food employees that you think that getting this wrong after being asked 5 times is normal.

After asking whom 5 times? If you pay any attention at all to what's going on on the other side of the counter, you'll notice that you are not speaking to the person who is actually preparing the food, and cannot speak directly to him. However many times you repeat something to the counter-person, only one message goes to the back end, in the form of the order on the screen. The way a fast food place is organized, the counter person just enters orders, collects the payment, and takes wrapped items out of the chute and puts them in the bag or tray; they have to assume that the labels on the wrapping are correct. They aren't allowed to unwrap the food, since they also handle money - nor would they have the time. It's that organization, specialization of tasks, and relentless pressure to finish each transaction in minimum time that allows fast food joints to deliver sanitary and sort-of acceptable quality prepared food so cheaply.

The kitchen of an expensive restaurant is equally off-limits to the customers, and I've seen fouled up orders at such places, too - although less often, because the workers are better paid (presumably for being better at their jobs) and maybe a little less rushed, and because the waitress can see what she delivers to you on the plate, if she can keep all the different orders straight so she recognizes a mistake.

I prefer my burgers with cheese and lettuce only. I simply abhor mustard, catsup, and pickles. At most fast food places, I will definitely check the burger before leaving, although a mistake won't make me sick. At McDonald's, I'll order chicken nuggets instead, because special orders often take a long time, and because IMO they're using those condiments to cover the taste of poor quality patties.

It's inconceivable to me that someone who knew that a single bite of cheese could kill him, and so aware of the possibility of errors that he repeated himself 5 times, would then bite into the burger without checking. The offer to pay his full medical bill was more than generous. If I was on the jury, I'd figure the customer was 75% negligent. If the law allowed any award under that circumstance, I'd award 25% of the direct expenses (the emergency room bill), and nothing else. Punitive damages? You've got to be joking - unless there's a way to assess them against the plaintiff's parents or lawyers.
8.12.2007 4:31pm
PatHMV (mail) (www):
If I was on the jury at this point, I think I would decide that the man's story is simply not credible. I'm smelling scam. Remember the woman who "found" the finger in her Wendy's chili?

This was not some 12 year old, chafing under the restrictions of a food allergy who might get carried away before he became mature enough to be more careful. This is a man in his 20s, who drove through McDonald's with his mother.

Had they never ordered at McDonald's before? Do they not know that the drive-through is the worst place to make a special order? Why in the world would a man in his 20s, along with his mother, actually risk his life in this manner? I just don't believe that. I think this is a scam.
8.12.2007 5:10pm
JosephSlater (mail):
Just a bit of law to throw into the mix. Re Northwestern Law Student's idea that this could be a product liablity case, although s/he is correct that comparative/contributory negligence is not a defense in most product liability cases under the Restatement Second, it is under the Restatement Third. Jurisdictions are split, but the R3 approach is gaining popularity.
8.12.2007 6:17pm
neurodoc:
Actually, duty is probably the most difficult of the elements to establish. [A Northwestern Law Student:]
I don't know whether you intended that as a statement of general applicability or only with reference to this particular case. In either event, while I won't be terribly surprised if the P strikes out, I will be very surprised if it happens because the judge grants summary judgment to D, ruling that D owed P no duty.

If the P survives a motion for summary judgment by D, as I expect he will, and after the evidence is weighed it is concluded that there was no negligence because the harm done was too remote a possibility to have been oreseen, then perhaps you could say there had been no duty, since there can be no duty to act in such a way as to avoid unforeseeable harm. But that is a circular way to think about "duty," isn't it? And such a "look back" approach (was the harm foreseeable, and if so there was a duty to avoid it) wouldn't be very useful when the question is one of duty under a variety of special circumstances.

Suppose it is concluded that the D did act negligently in not exercising the expected "duty of care" (in a med mal case, failed to meet the "standard of care"), and might have caused the P to suffer harm, but that D's negligence was not the cause-in-fact of P's injury. (P presents to emergency room complaining of acute abdominal pain which he attributes to the cheeseburger negligently served him a little while earlier by D. It turns out, however, that P's abdominal pain had nothing whatsoever to do with what he consumed, instead it was caused by a kidney stone.) After it was determined there was not proximate causation, would you say D was found not liable because the court concluded that D had no "duty" to prevent the unrelated, and hence unforeseeable, renal colic? Would you say that even though the judge had denied SJM on the "duty" issue and it was not until the trier of fact got to causation that the P's case crumbled?
8.13.2007 12:58am
A Northwestern Law Student:
Neurodoc:

First, I did mean that duty was the most difficult element to establish in this case. I don't know about the statistically most difficult element to establish across all tort cases, but my offhand guess is that it would be actual causation.

Second, the evidence is weighed in deciding a summary judgment motion. In West Virginia -- no surprise -- "[t]he [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W. Va. R. Civ. P. 56(c).

However, the existence of a legal duty, and the question of objective foreseeability of harm, are both legal questions, and could be resolved on a motion to dismiss well before the summary judgment stage.

Third, I think that a court would most likely respond to your hypothetical by assuming arguendo that McDonald's does have a duty not to serve hamburgers that cause renal colic, and would base a ruling on the lack of actual causation. I suppose it might happen that they would decide ab initio that there is no such duty and dismiss the case on a 12(b)(6), but this seems to me intuitively less likely.

Last, I think this thread is about done. Very interesting discussion though!
8.13.2007 2:26am
neurodoc:
A Northwestern Law Student:, just to be clear, you do understand don't you that there is no way the eating a cheeseburger or anything else is going to precipitate the passage of a kidney stone and cause renal colic. If it turned out that the bellyache was from a kidney stone, P would surely lose. Now, if you were given this as a hypothetical with all the details except the final diagnosis (reaction to cheeseburger vs unrelated medical condition) and asked whether D owed P a duty of care in the instant case, would you say that you could not answer until you knew whether what took P to the emergency room was related to the D's putative negligence? Would you withhold judgment as whether it was negligent of the D to serve P the cheeseburger until you knew whether D's conduct in fact caused P an injury?

If you want to meld "duty" and "negligence" together into one, you can find support for such an approach in Palsgraf and the framing of them as effectively one with "duty of care," "care" being non-negligent conduct. But I don't see them as one, since "duty" may depend on the relationship of the parties, while "negligence" may be seen as "negligence" whether or not the other elements are all present to establish legal liability for D. (The "standard of care," that is what is non-negligent for a physician, may be different according to whether the doctor is a general practitioner or a board certified specialist. So what is "negligence" for one may not be "negligence" for another, but that is not about "foreseeability," nor is it a matter of greater or lesser or different "duty." Rather it is the "care" part of "duty of care.")

In summary, according to my understanding of "duty," I don't think it in doubt in the instant case. P may be unsuccessful, but it won't be because there was no "duty" on McDonald's part. More problematic for P when the question turns to the exact nature of that "duty," in particular the "care" part.
8.13.2007 12:17pm
e:
Alan has it. And customers don't really want perfect accuracy at McDonalds. They prefer cheap. I return on occasion for the $1 double cheeseburger even though I know that they'll sometimes put ketchup and mustard on it despite my direction to the contrary. I return because the value includes tradeoffs. And even expensive restaurants with higher profit margins will mess up special orders while using reasonable care. The corp has the deep pockets, but won't exist if we all try to get our piece. The person with a serious medical condition is the one best positioned to save all of us time and money. That's life.
8.13.2007 3:21pm