Over at Lowering the Bar, Kevin Underhill reports on a lawsuit filed against Lambert’s Cafe in Sikeston, Missouri, a place known as the “home of the throwed rolls.” It seems a roll was “throwed” and a patron was injured, suffering “a lacerated cornea with a vitreous detachment.” Ouch.
Underhill raises a lot of good points about the case, with case law to boot. Initially, there’s the question of whether the patron assumed the risk of being hit in the face with a roll. As Underhill says,
The Missouri Supreme Court [has] held that the question is whether the plaintiff was “injured by a risk that is an inherent part of [the activity].” … Obviously, the problem—and the reason that assumption-of-risk cases are so inconsistent—is defining “the activity.” … Here, is “the activity” eating dinner—in which case you generally don’t expect to have things thrown at your head (except maybe at Thanksgiving)—or is it “eating dinner at Lambert’s Cafe, the Home of Throwed Rolls,” in which case you’d be stupid not to expect it?
I think we need to know more facts to really assess the role of assumption of risk here.
When I initially read the story, I pictured the patron asking for a roll and then being hit in the face with it when she failed to catch it — but what if the patron was just sitting at her table eating and an errant roll came flying at her? What if it came from outside of her peripheral vision?
In other words, when you’re at the “home of the throwed rolls,” do you assume the risk of rolls flying at you from all directions at all times? That strikes me as a dubious argument, like saying that everyone at a Chinese restaurant assumes the risk of a flaming pupu platter spilling on them as it is carried to another table.
As Underhill also notes, even if the patron assumed the risk in some fashion, the restaurant can still be liable if its employees “negligently altered or increased the risk and that caused the injury.” Did the employee throw it at her like a fastball? Did the employee check to see if she was looking? Was it an unusually large roll, or was it steaming-hot right out of the oven, or in some other unusually dangerous condition?
I have no idea what the answers are to any of these questions, which is my point: before we judge this case as “[Missouri’s] version of the infamous Liebeck v. McDonald’s Restaurants hot-coffee lawsuit,” as one local paper did, let’s remember that we barely know any of the facts of this case. (And if you think you know the Liebeck case, see the post I wrote for Abnormal Use last year.)
Underhill notes that a jury is unlikely to be receptive to the claim:
[I]f it does get to a jury, as in the Royals case [arising from a thrown hot dog] that jury is likely to award exactly zero dollars, whatever the rules are. But trials are expensive, so if a judge doesn’t throw (no pun intended) the case out early it basically forces the defendant to settle. (Which Lambert’s has done in a couple of prior cases, according to one report.)
Maybe so, but maybe not. Trials can be expensive, but a simply “throwed roll” trial isn’t going to cost the insurance company much. Most likely, if they thought they could win it, they’d offer nothing, forcing the plaintiffs’ lawyer to take it to trial and lose, to teach them a lesson and to discourage future suits. That’s the “from Good Hands to Boxing Gloves” strategy that Allstate pioneered in the 1990s at the urging of McKinsey & Co.
On the other hand, maybe Lambert’s settled those other cases (referenced in the block quote above) because the restaurant realized it was responsible. We don’t know the facts of those cases, either — if they involved, say, patrons getting walloped in the eye by poorly-thrown steaming-hot rolls, then those settlements don’t seem “forced,” they seem prudent and appropriate. In everyday life, we expect people and companies to take responsibility for the harm they unreasonably cause. Only in the tort system do we raise an eyebrow when someone pays their dues.