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Mar 28, 2011 07:50 AM

Family Sues Chinese Restaurant For Death Due To Allergy....

Sad story, but who is really at fault here? What's your opinion?

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  1. My opinion only, the restaurant is at fault if indeed peanuts/peanut products were used after they were specifically asked not to use that ingredient. How sad. A life lost, and a reputation, ruined.

    3 Replies
    1. re: mamachef

      mamachef, although i see where the other side falls in their thinking, i have to agree with you too. as a parent to a child with multiple food allergies (egg, peanut, and tree nuts) we rarely eat out. but when we do we make sure the place will guarantee that there will be no cross contamination. this is a verbal agreement. i have yet to take a piece of paper for them to sign b/c when we agree, i expect them to hold up their end of the agreement. same for anything else. when i call to get a pizza delivered, i expect them to deliver it.

      when they say no peanut that means no peanut. not, whoops there's peanut in that dish lets pick it out. or whoops we used peanut oil. this cross contamination resulted in death not an just upset stomach.

      however, as a parent with an allergic child i would not have allowed him to eat chinese food. but allergies get tricky at a school age (we haven't reached that age yet) where kids get bullied and are left out b/c of their disability. we would only eat at somewhere like PF changs where they can assure this type of safety.

      this whole thing is so sad. i love food and believe we can learn so much from it but i wish we'd just take food out of the classrooms. we can celebrate in so many other ways.

      1. re: trolley

        As a person with very bad asthma and having a (somewhat odd) food allergy to Kiwi fruit - I will have an Anaphylactic reaction- I avoid ALL mixed fruit salads and all fruit dishes with fruit in it once I am told the restaurant serves kiwi. Yes, they tell me they won't put it in my food etc. but unless the establishment takes the time to wash all cutting boards, knives, spoons etc etc and make sure it touches nothing I am at risk. And I know restaurants are not prepared to do this. Now this is kiwi so it is far easier to avoid than peanuts a product that is often a "hidden" ingredient in many foods. If the peanuts were tossed into the dishes served then the restaurant was clearly grossly negligent and should be held liable but if it was cross contamination then I think not. Here's why: this is a restaurant doing high volume and most likely it is totally impossible to avoid cross contamination. we all know that peanut products are VERY common in Chinese food. How, unless specifically trained would the restaurant avoid that type of contamination or even understand that to safeguard this child they had to not only avoid direct infusion of peanuts into the food but take very particular precautions against any indirect addition of the dangerous product? I also do not understand a "peanut free" school choosing to bring in Chinese (or any Asian food for that matter) into such an environment. Surely, they understood the risk of cross contamination and could not possibly have thought that the restaurant would create the type of scrubbed free of cross contamination cooking environment to safeguard an allergic child. And I for one would never have permitted my allergic child to eat Chinese food in such an environment. This is a terrible tragedy and I feel for these parents and everyone involved but unless it can be demonstrated that the restaurant understood that "peanut free" required more than its simple direct elimination from its dishes I don't see how they are responsible. It appears more likely that the fault was with the parents and the school.

        1. re: Mangita

          Just to clarify, the school was not "peanut free" at the time of the incident.

    2. There were trace amounts of peanuts or peanut products, that could mean anything. I don't think the restaurant assumed this risk, rather the parents assumed the risk ... if your kid has a potentially deadly allergy to peanuts, it's best to keep him/her away from take out Chinese food.

      Unless the restaurant was negligent to the point of serving up some kung pao chicken with peanuts I don't see why they should be held responsible, it's not their job to police what the kid eats.

      5 Replies
      1. re: redfish62

        There are definitely inconsistencies in the written article. It notes *children* had allergies, yet no other child had the same reaction. It notes *peanut allergies*, suggesting more than one child had the same concerns as well, but no reaction. Like you note, the Chicago Board of Education sent out samples to the University of Nebraska Food Lab, and it was determined *trace* amounts of peanut or peanuts products....yet the attorney for the family say it was *heavily contaminated*.

        I'm on your side of the fence on this one.

        1. re: fourunder

          it notes that children had food allergies *including* a peanut allergy - so maybe the other kids are allergic to other foods, or are not as severely allergic to peanuts. IMO if you have a deadly allergy to something (as I do) you do whatever you need to do to avoid it, and to avoid foods that might be contaminated with it.
          To order chinese food and serve it to a kid with a peanut allergy is stupid, since peanut oil is used so prevalently in chinese cooking. did the parents not educate the child about the possibility of cross-contamination? did the school not send a permission slip home asking that the child be allowed to participate? and where was the child's epi pen?

          so many questions about this tragic situation, but I do not think they should be suing the restaurant.

          1. re: fourunder

            I am going to sit on this same side with you too. I grew up with a younger brother who was allergic to peanuts, wheat, eggs, chocolate, spinach, milk, chicken, and turkey, among other things. He would develop a severe asthma attack, depending upon the quantity consumed. You know what? Mom and Dad used to bring his food to parties, and, if in a restaurant, he was allowed to order a steak or some kind of plain pork product. They could never risk the consequences. Well meaning people are not necessarily as knowledgeable as the parents, who live with the issue daily and have had to learn how to cope. We couldn't even trust that a hamburger did not have filler that contained wheat -- what a mess. He eventually outgrew some of these allergies, but it was really clear, in those days at least, that if he might have to be rushed to the hospital ER, it was stupid to take chances. Chinese food, interestingly, was something he was able to eat, but usually only because he ate pepper steak or beef with brocolli and white rice. I guess the peanut oil that might have used in cooking was not a problem.

            My sympathies are with the parents and family, but the reality is that if your child might DIE from eating something that might be added to outside food, you can't risk the child eating it unless you were personally involved in the preparation. No one can take care of your own kid the way you can.

            Frankly, I put these food allergies, and I am talking her about the real ones -- not the convenient ones invented by the selfish idiots out there -- in the same category as having a kid with diabetes. You need to be extremely cautious.

            1. re: RGC1982

              "Frankly, I put these food allergies... in the same category as having a kid with diabetes. You need to be extremely cautious."

              The constraints of allergies and diabetes are really very different. With diabetes there is no single ingredient that will kill you quickly, even in large amounts. A little mistake will hurt you a little bit, whereas with a severe allergy, a little mistake can kill you. The tools for managing diabetes have improved over the last few decades, making 911-type emergencies much less likely. The physical damage due to diabetes is cumulative, so the issue is more with daily balancing than with avoiding specific foods, which is a different, and differently burdensome, issue. And nobody outgrows diabetes, so it's all about the long haul.

          2. re: redfish62

            I have to agree with you. Trace amounts of peanut products could quite possibly have cross-contaminated the utensils used to prepare peanut-free dishes. The parents should have realized that this could be a possibility.

            The school also didn't administer epinephrine. I wonder if the school will be sued as well?

          3. just based on the story as written...
            the food lab says "trace amounts"
            the lawyer says "heavily contaminated"
            and even tho the school knew also says the epinephrine was not given...why not?

            just based on the story i wouldnt know who to blame...

            and was the chinese food the only food at the event?

            imo..not enough information to assign blame yet....

            a tragic event....none the less....

            2 Replies
            1. re: srsone

              Your observations are the same as mine.....

              1. re: srsone

                just based on the story i wouldnt know who to blame...
                The rare voice of reason is a welcome relief...

              2. IMO the onus is on the person with special dietary needs to go as far out of their way as possible to make sure that they're getting what they want. A place can only be so vigilant - how do they know that some product they use doesn't have trace peanut bits, or whatever it is that someone wants to avoid?

                People need to know what they can and can't eat and then make special arrangements. And by special arrangements I don't simply mean "ask them not to put peanuts in it"

                10 Replies
                1. re: jgg13

                  Completely agree with the burden being on the person with the issue.

                  I don't think they're liable.

                  1. Requests are meaningless unless you've got it on a contract all spelled out and signed.

                  2. Good luck proving that the source was from the restaurant.

                  1. re: ediblover

                    Ever hear of an oral contract? If you explicitly agree to make a peanut-free meal and then neglectfully or willfully serve peanuts that cause someone harm or death, you are most definitely liable, regardless of whether there is a written contract.

                    I agree with SRSone above - we don't have enough information to decide who is at fault (and to what extent) in this specific case.

                    1. re: cowboyardee

                      I've heard of it. And I laugh at it.

                      Was the conversation recorded? Doubtful.
                      Was there a guarantee (big factor) given by the restaurant? Doubtful.
                      Was there a third party witnessing the conversation? Doubtful.
                      Did the person making the agreement have authorization (another big one)? Doubtful.

                      Laughable. Waste of court's time.

                      1. re: ediblover

                        Oral contracts are harder to uphold in court. That doesn't mean that the restaurant is not liable or that this suit is without grounds - just that it's harder to prove if the restaurant denies that an agreement was made. Also, since this is a civil and not a criminal case, there is no requirement for proof beyond a reasonable doubt.

                        Wouldn't be laughable if it was your kid. Just sayin. Would be pretty damn far from laughable.

                        1. re: cowboyardee

                          Let's agree to disagree about some things, and just not go there, talking about our kids. G-d forbid.

                        2. re: ediblover


                          It really isn't laughable. A child died.

                          But to take your points one at a time:

                          >>>Was the conversation recorded? Doubtful.
                          Irrelevant. Oral contracts are enforceable regardless of whether they are recorded in any sort of medium. Course of conduct, industry practice, etc. can all create enforceable promises.

                          >>>Was there a guarantee (big factor) given by the restaurant? Doubtful.
                          Unknown from the facts given to us. Like I said previously upthread, the restauarnt may have guaranteed "no peanuts" but not have guaranteed "food prepared in a peanut-free environment" ... Big difference. Without discovery, we'll never know. Even with discovery, we may never know.

                          >>>Was there a third party witnessing the conversation? Doubtful.
                          Again, irrelevant. Don't need third-party witness to establish enforceable oral promises. See above.

                          >>>Did the person making the agreement have authorization (another big one)? Doubtful.
                          Even if the minimum-wage, high school worker manning the phones did not have authority, legal liability could most likely be established through the theory of apparent authority. In other words, if the owners of the restaurant held out that high school worker as someone who could speak on behalf of the restaurant and bind the restauarnt, then it is immaterial whether the high school worker had any actual authority.

                          Like alot of us have said before. Lots of things we don't know.

                          But one thing I think all of know is that this is not something that should be laughed at. A life was lost. Regardless of whose fault it was, that unmistakable, tragic fact can't be disputed.

                          1. re: ipsedixit

                            My response was to the verbal agreement situation, not the case specifics. A case where everything hinges on a verbal agreement with likely no guarantees, authority and evidence of, is a situation more muddling than a he said she said situation.

                            I'm all behind the restaurant.

                            1. re: ediblover

                              A case where everything hinges on a verbal agreement with likely no guarantees, authority and evidence of, is a situation more muddling than a he said she said situation.

                              Huh? That's exactly what most he/she said situations are. It's why we have jury trials so that a jury can decide which side is more credible.

                              There is nothing legally infirm about a verbal agreement witnessed and allegedly executed only between the person making the offer and the person accepting the offer. Nor is it out of the norm.

                            2. re: ipsedixit

                              thanks ipse for being a voice of reason and making a lot of sense. a child dying is not laughable at all.

                          2. re: cowboyardee

                            An oral contract still has to have specific terms. As ipsedixit noted, for there to have been even a glimmer of a cause of action the fact that they needed food to have been prepared in a peanut-free environment would have had to have been specified. And I think that it would not be reasonable to assume that someone answering the phone has the authority to agree to something that could require extensive changes to not only the food but the operations of entire kitchen -- only the owner or the chef could do that.

                      2. Sorry, but if my child had a severe peanut allergy, they would not be eating catered school meals.

                        Id guess this is a case of Chinese restaurant owner/staff not understanding that even trace amounts of peanuts can cause a severe reaction-even death. Now he knows and likely wont forget. For better or worse, this is how our country rights its social wrongs.