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What should we do?

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While dining at a wonderful restaurant, one of New England's finest, my husband bit down on a fried oyster and cracked a crown on a bit of shell, or sand in the oyster. He spoke to the manager, who give him her card and said to please send the dental bill to her. After receiving the bill, the chef-owner called my husband and said that the manager did not speak for the restaurant and there was nothing they could do. My husband asked if they had insurance, and the chef said no.

  1. Was it sand or shell? Shell would be fairly obvious, but sand, I mean, how can they get every grain out?

    1. If your husband bit down on something hard enough to crack a crown, it was almost surely a bit of shell rather than sand. Unfortunately when opening oysters it's pretty much impossible to avoid an occasional bit of shell from falling onto the oyster. As an oyster lover myself, I'm always careful about biting down too hard. On the other hand, it sounds like the manager handled the situation properly, and I'd like to hear the chef-owner explain to a court that the manager doesn't speak for the restaurant. The manager is the owner's representative, and of course speaks for the restaurant. I can't believe that the restaurant doesn't have liability insurance, and the owner sounds like a jerk. I'd probably never return.

      1 Reply
      1. re: josephnl

        There's always small claims court for recourse.

      2. Just reread your post and realized that I missed the word "fried". Although bits of shell are pretty common when eating raw oysters, they really should not be present in fried oysters. If you want to pursue it (I don't think I would myself), as monavano says...there is always small claims court.

        1. I would talk to the restaurant about paying for half of it since sometimes a crown can be fragile and crack from something a regular tooth would not have a problem with. Or, since it is such a wonderful restaurant, see if you can take it out in meals....just don't order the fried oyster.

          1. Speaking as someone who has multiple crowns - something was obviously wrong with the oyster - probably shell did the damage. The restaurant is responsible - I'd pursue it.

            1. First a disclosure>

              I am an attorney, I live in New England and went to law school in Massachusetts

              I do NOT practice personal Injury law., but do practice contract and business law.

              BUT!!!!!!

              This is a basic question of the law of agency.

              The restaurant manager has apparent authority or agency to bind the owner. He represents himself to the patrons as management of the business. He is allowed to do so by the owner and no notice is posted repudiating this authority.

              The OP does not say that the manager said send me the dental bill and we'll pay it, the manager is reported to have said send me the dental bill, maybe he meant so that it can be considered.

              I find it hard to believe that one of New England's finest restaurants does not have liability insurance. The chef/owner sounds like a liar.

              So, you have a personal injury claim if in fact it was shell that caused the injury. A diner has no reasonable expectation of biting on shell inside a fried oyster, while would be expected to check a raw or steamed oyster before eating. It is reasonable that there will be some sand in a fried oyster.

              The key is both proving the negligence: The restaurant had a duty to its patrons to provide safe food, it breached that duty by serving a fried oyster with hidden danger (shell inside) the patron in fact suffered damages caused by the breach (dental injury) and seeks damages ($$$) to remedy such. AND showing that the manager, manifesting his apparent authority bound the principal to pay for the damages,

              Make sure to make a complaint to the local healt department as well.

              16 Replies
              1. re: bagelman01

                I can't imagine the landlord or financiers would let the restaurant operate without liability insurance. I smell a lie.

                1. re: bagelman01

                  Full disclosure, I am NOT a lawyer :) But wouldn't the OP have to have kept the piece of shell?

                  1. re: bobcam90

                    #1, OP states that husband is not sure if it was shell or sand
                    #2 It would have been good to have kept the shell (if it was a piece of shell) but that can get into a chain of custody issue. Better to have called the manager over, taken out the cell phone and taken a picture of Husband, the manager and the piece of shell. Dated with time stamp.
                    #3 Husband might also had recorded his conversation with the manager with a cell phone.

                    Ain't modern technology great??????????????????

                  2. re: bagelman01

                    Just as a curious onlooker, whatever happened to Webster v. Blue Ship Tearoom (that was a bone in the throat from fish chowder)? I recall that the court quoted Justice Taft in an Ohio case in which an oyster shell was to blame and the Court stated as a matter of law that one should expect to find shell.

                    1. re: hazelhurst

                      This situation would be distinguished from Webster as the oyster had been removed from its shell, breaded and fried. The restaurant had a duty to inspect for shell fragments before breading knowing it would not be possible for the customer to see.

                      1. re: bagelman01

                        OK, I can see trying it that way..but I think Taft issues an essentially blanket statement that anyone who eats oysters(he did not specify the manner of preparation, if any) must be alive to the possibility of some shell. And then there is the pearl issue....I haven't Shephardized Webster though and was curious as to whether it is still good law. when was that? 1963? 1964? It was one of those rare cases that was fun to read.

                        Webster has some kissing cousins in Louisiana Law, many of which cases say (in essence) "This is our culture. Tough luck."

                        1. re: bagelman01

                          CORRECTION: I found Webster (198N.E.2d 309)) online...Mr Justice Taft is quoted (164N.E.2d167, at 174) referring to a piece of shell in a fried oyster. The SJC quotes Taft with approval. It's on all fours.

                          1. re: hazelhurst

                            Since we're talking about Massachusetts
                            "

                            Distinguished by:

                            O'Brien v. Dora Ferguson Catering, Inc., 1988 Mass. App. Div. 150, 6 U.C.C. Rep. Serv. 2d (CBC) 1434 (Mass. App. Div. 1988)

                            1988 Mass. App. Div. 150 p.152

                            Shepard give a Yellow Caution, no longer really good law.
                            and Webster was specifially chowder, not fried oysters

                            1. re: bagelman01

                              Thanks...I'll have a look at them. What interested me in Webster was that the cited opinion of Taft, which the court seemed to think was dispositive, was about fried oysters with the implication being that she could have broken her tooth on that and it is still "hard cheese."

                              Of course, 'round here were are (theoretically) not bound by stare decisis. It is persuasive but so many common law types are practicing (plus we are surrounded by it) that its elements have snuck in and done their evil work....

                              1. re: hazelhurst

                                The problem in citing Taft, was that it was so long ago. Back in the 18th and early 19th century, oysters were very common food and diners far more accustomed to checking for shells. Since WWII they are more of an exotic item. Most Americans have probably never had an oyster.
                                I'm lucky to live on the New England shore and have a choice of Oyster festivals all summer long.

                                1. re: bagelman01

                                  You are right, of course, about the problem of the age of the case (but you can always tell the judge that Old Isn't Perforce Bad...just throw in Marbury or some such). I'd claim that a shell-is-a-shell-is-a-shell and there is no difference between a shell in 1860 and 1910 and 1930 etc. We note the Webster court observed that the plaintiff was a New Englander and much weight appears to have been given to her knowledge of possible hazards in chowder. And you might be right that "most Americans have probably never had an oyster". Certainly most have never shucked one. I think my line of attack--defending the shop--would be that people who eat oysters know there are possible shells or pearls (and you can throw in that old chestnut "should have known"), plus any effort to hold the restaurant or pre-shucked oyster provider liable is a coddling nanny state that, if allowed to run untrammeled, will lead to riots in the streets and a population bellowing ceaselessly for its entitlements without doing anything to earn them and provide tax money with which to pay this honorable court's salary.

                                  I;m sure I am preaching to the choir. It is fun to think about, though.

                      2. re: bagelman01

                        Yowza!

                        I think it's really a stretch to argue that it is per se negligence to have shell in fried oysters (but, oddly, not in raw or steamed, nor to have sand in any of the above). Plus, how do you know the resto even shucked the oysters? Lots of places get the pre-schucked ones for fried oysters...what then?

                        As for the manger binding the owner to pay...What about the inadmissibility of settlement negotiations?

                        1. re: akq

                          akq>
                          The patron can see the raw or steamed oyster, he can't see through the breading on the fried oyster.
                          Who shucked the oysters is not in play. The diner has privity of contract with the restaurant, not the wholesaler. The restaurant's insurance company could try to subrogate the claim if applicable.

                          Again, we don't know what the manager said, OP has never clarified if manager said, sewnd bill, send bill and we'll pay, etc.
                          If manager said send bill and we'll pay, it is not a negotiations, but an offer, which the patron accepted by sending the bill

                          BUT, since the OP won't add any additional onfo, this is all just speculation running in circles.

                          1. re: bagelman01

                            Privity may or may not apply in a products liability case where a defective oyster was placed into the stream of commerce (post made just for that pun).

                            1. re: JRSD

                              the oyster was not defective when put into the stream of commerce, the restaurant's handling/preparation is thought to be at fault. If they had used the same shucked oysters for chowder or stew, probably no liability, as it would not be hidden by the breading.

                            2. re: bagelman01

                              Agreed that this is all conjecture, but you make a lot of pretty big leaps in reasoning and I think your analysis is pretty flawed.

                              If OP's hubby went to court to sue over the "accepted" settlement offer, I'd be surprised if the judge allowed any discussion of that "offer" over an objection of inadmissibility of settlement negotiations.

                        2. I don't think the restaurant should be responsible but -- if you hire a good ambulance chaser, who knows?

                          1. This situation is a real shame nancy. I see that you are posting here instead of on your local boards and have been considerate enough to not mention the place by name. Perhaps you are being too kind. The real test of a restaurant is how they handle a problem. I agree with some of the other hounds that the owner is probably a jerk. Keep us posted on how this plays out. And do consider posting on your local boards and mentioning the place by name. If you do, link it here so we can read what local hounds think. Would also love to hear from any present or former restaurant owners or managers.

                            2 Replies
                            1. re: givemecarbs

                              If the restaurant name is mentioned the post would be removed from any Chowhound board. From the guidlines

                              http://chowhound.chow.com/topics/367605

                              "Reports of health violations, including food poisoning, bugs and foreign objects found in food are not permitted, as our breezy forum is not an appropriate venue for handling such urgent and serious issues. Please report them to the appropriate health authorities."

                              Or ... in this case ... your lawyer or small claims court.

                              It depends on how much you like this particular restaurant on what you want to do.

                              For me, there are lots of good restaurants. I'd call the chef/owner back and mention how often I dine at the restaurant and spend yearly ... if that is significantly more than the dental work. I'd say that business was now gone as I will not be returning.

                              For me the big issue is not the original shell, but the owner making you take the fall for a lapse in policy. If the manager made the promise, then the owner should honer the promise and take up the issue with the manaager.

                              1. re: rworange

                                rw>>>

                                We don't know what the manager said, The OP reported that the manager told her husband to send the bill, in my post I asked whether the manager committed to pay the dental bill

                            2. My wife cracked a tooth on a piece of uncooked rice of all things. We regarded it as "just one of those things" that happen from time to time in life. No significant fault of the restaurant, in our view - although really annoying of course.

                              16 Replies
                              1. re: Harters

                                Harters,
                                This is an example of differences between the US and UK legal system. While negligence law may be similar, our agency law is quite different.

                                A consumer might reasonably foresee that there may be an individual grain of rice that doesn't cook in a serving. It certainly happens ofetn enough at home. BUT, a consumer should reasonably expect that a restaurant that has shelled and battered and fried oysters has insoected them to assure no hidden shell fragments that could break teeth. This is different than grains of sand which were a possibility mentioned by the OP.

                                If the OP's husband broke a natural tooth, then the strength and health of his tooth would be in question, but a crown should not routinely break when eating a fried oyster.

                                1. re: bagelman01

                                  well the OP doesn't say how old the crown was and we could do with a dentist to tell us how long a crown can last and what can contribute to cracking and wear and tear. For example maybe the OP's husband grinds his teeth, chews ice or holds his keys in his teeth!

                                  1. re: smartie

                                    none of what you post actually matters in>

                                    #1 agency law, the ability of the manager to bind the owner

                                    #2 whether the restaurant was negligent in serving a fried oyster with a piece of shell in it.

                                    What could happen, is the resto's atty could show the flaws in the crown, and the amount ofd the award could be reduced according to the theory of comparative negligence. Mass. is not a jurisdiction that throws out the claim do to some contributory negligence.

                                    1. re: bagelman01

                                      It would NEVER win in court. There is no proof -only hearsay. Prove the tooth was in good shape beforehand (unless the OP visited the dentist earlier that day). Prove the manager agreed to pay. Prove that the restaurant is negligent (which would probably involve finding other patrons who had a similar experience). Prove that this event actually happened. Give it up ...there is a complete lack of evidence and the case will and should be tossed out.

                                      1. re: kpaxonite

                                        NEVER......
                                        Ajury is fickle andmany types of awards are made.
                                        You or I have no idea about what happened, that's what discovery and testimony are for. There are many exceptions to the hearsay rules. If the manager agreed to pay, it is an admission by a party (if mgr is named in suit) not hearsay.

                                        You have no idea what evidence exists and certainly are not qualified to deternine that an unfiled suit should be tossed out of court.

                                        1. re: bagelman01

                                          And people wonder why our court system is a mess and overcrowded with cases - many frivolous. :-/

                                          1. re: LindaWhit

                                            Linda,
                                            remember this discussion is all supposition. The OP nevr has returned and clarified what went on. We don't even know if there was a shell or just sand, what exactly the manager said, etc.
                                            Right now there is no case in the court system, frivoulous or otherwise.

                                            1. re: bagelman01

                                              Yes, I'm fully aware of that. I've read the entire thread.

                                              But the "sue for any reason" mentality still causes the dockets to be overcrowded with frivolous cases.

                                              1. re: LindaWhit

                                                You might want to find out if that is actually true before you put it out there as fact. The main types of legal actions crowding our courts are drug related rather than "frivolous cases" though we each define frivolous in our own way.

                                                1. re: escondido123

                                                  Some examples: http://www.huffingtonpost.com/2010/05...

                                                  Yes, many were thrown out of court. But they MADE it to court. And Lizard, it's not just lobbying to curtail corporate responsibility.

                                                  Again - it's the "sue for any reason" mentality I dislike. But hey - that's just me. As to the OP, I'm not sure whether they'd have any proof against the restaurant if they didn't keep what cracked the OP's husband's tooth. Evidence is key in a situation like that - or it should be key.

                                                  1. re: LindaWhit

                                                    Well, I can't argue that there aren't any idiots-- but I don't think I was. As you say, though, many of these were thrown out of court (the system vetted the worth) and as for those that make it though, I don't read that as evidence of crowding. And I wonder how much more I would need to know anyway. (It is amazing, sometimes, the difference between the facts of a case and how it is reported...)

                                                2. re: LindaWhit

                                                  Hmmm, I think that this notion of a flood of frivolous lawsuits is due more to strong lobbying on the part of those who want to curtail corporate responsibility to the public. Turns out these filmmakers suggest this as well: http://hotcoffeethemovie.com/

                                                  The claim of 'crowding' is also interesting since courts are the place where many of these disputes are meant to be settled. Given how costly and unpleasant bringing a suit is, I'm sure all parties would be looking for a suitable solution.

                                                  What should be done is another matter, though. I've cracked a crown (twice) when eating before but chalked it up to wear and tear. (As Joan notes below, hot and cold precipitate changes, and general changes over time cause the crown to expand and contract, eventually weakening).

                                                  1. re: Lizard

                                                    Amen

                                                    I've had some real issues that I tried to persue legally and it isn't as easy as it gets hyped. It is those occasional exceptions that get through and get media attenion for silliness that fuels the clogged court perception.

                                                    After a year living in a country without the right to persue wrongs legally, I've seen the dire consequences of that to the average person.

                                                    I think most of us have the judgement and restraint of what to persue legally. I wouldn't want that taken away. It is like freedom of speech, tolerating the few excesses, is a small price to pay.

                                                    Personally, this type of thing wouldn't send me to a lawyer or small claims court for a number of reasons. As mentioned, though I found the renegging offensive and that would cause me to vote with my pocketbook and no longer patronize that restaurant.

                                                    1. re: rworange

                                                      I agree it is the reneg that bothers me, the owner not standing behind his employee. If the manager doesn't speak for the restaurant she should not be working there. I think the owner could have made a goodwill gesture without admitting liability: "We can't reiumburse you for the dental costs, but since my manager erred in this situation, let me offer you dinner on the house" or something.

                                      2. re: smartie

                                        My father was a dentist, and I can’t tell you how often he came home with yet another story along the lines of, “Doc, I cracked a tooth eating soup.”

                                        Teeth and crowns can develop internal cracks or crazing that can’t be seen, sometimes even by X-ray. A sudden change in temperature, hot or cold, can precipitate a break. It’s interesting to me that the OP’s husband isn’t sure whether he bit down on sand or a piece of shell. I’ve bit down on both at one time or another, and there’s a big difference. I’m pretty sure that if I bit down on a piece of shell, I’d more than likely have spit it out and had it in hand to see what it was.

                                        Anyway, it’s entirely possible that it was simply the hot oyster that caused the crown to crack. I don’t see how the OP can hold the restaurant responsible when she’s not even certain exactly what happened to cause the broken crown.

                                      3. re: bagelman01

                                        "This is an example of differences between the US and UK legal system."

                                        It's a difference between people who understand that life isn't risk free and accidents happen.
                                        I don't know how old the crown was, or if it was porcelain and therefore brittle and easily fractured, but my crown was several years old and porcelain when it fractured into pieces (front tooth!) while sucking on a lobster leg on vacation in Maine.

                                        If the OP's husband bit down on something substantial enough to destroy a crown and didn't find it/see anything substantial enough to identify it and pick it out of his mouth to show the manager, I'm guessing there's a very good chance that it was just his crown's time to ruin his day.

                                        Life isn't risk free; you pay your money, you take your chances. No evidence of shell, sand or negligence appears in the OP.

                                    2. I would do nothing. Maybe the crown was already cracked. Stuff happens it's nobody's fault.

                                      2 Replies
                                      1. re: smartie

                                        I pretty much agree and would likely do nothing. I still think the owner is a jerk. He surely has insurance. Perhaps he's had other similar claims and is concerned about his premium going up. If he doesn't want to file a claim, I'd probably just "bite the bullet" (trying not to break another crown), but would think twice about returning to the restaurant or recommending it.

                                        1. re: josephnl

                                          You should keep the shell. We bought a bubble tea once and it has a huge piece of glass in it just as big as a bubble which got sucked up by the straw and into my FI's mouth, we went back and showed the owner and he gave us 300 and made us sign papers saying we would not sue him as he didn't have the funds to go to court... etc.
                                          You should be entitled to something but if you have the shell that's better.

                                      2. Hm-m, that is an interesting call.

                                        Being from the Deep South, we probably accept more shells, than most, though that is not always the correct thing to do.

                                        Recently, at Restaurant Daniel, my wife's crab dish had a tiny bit of shell in it. I called the head server aside, and whispered of our find. She immediately whisked the dish away, and then replaced it. Next, she brought out another course, plus a wine to accompany that.

                                        I pulled her aside again, and told her that this was never my intent. I explained that we were from New Orleans, and some shell pieces were to be expected. She "shushed" me, and explained that at Restaurant Daniel, there should NEVER be any hint of a crab shell, or otherwise, and thanked me for the warning. She had gone to the line cook, responsible for that dish, and had pointed out the issue to him.

                                        All of this was in whispered tones, so no one, other than the three of us ever knew. They were so happy to have that feedback, that they bent over backwards, and shaved the largest white truffle, that I have ever seen, atop our extra dishes, along with the wines.

                                        I would pull the server aside, and discuss the incident in detail.

                                        I have blown out a crown on an olive pit, and wife has done so with other "bits." I can happen, but one should notify the management.

                                        Hunt

                                        1. I've reread all of the posts here, and it seems that in summary there are 3 conclusions that can be drawn:

                                          1) The owner of the restaurant is a jerk. If someone complains that they have broken a tooth or dental crown on a piece of food, the reasonable thing is for the restaurant to take care of it. They likely have insurance which can be charged for the injury, but I doubt that were talking big bucks...the restaurant should just write it up to good will and take care of it.

                                          2) Filing suit is probably not worth the hassle, and would likely not be fruitful. How in the world can you prove that it was indeed a piece of shell in the fried oyster that caused the crown to break...unless you have saved the piece of shell, can show that the crown was recent and in good shape, etc., etc. Is it really worth hiring an attorney...or going to small claims court...and even if you did, who knows who would win.

                                          3) Stuff happens! It's part of life!! Unless it's over the top obvious that some major wrong occurred (perhaps a rock in a scoop of mashed potatoes), I'd just suck it up as an unfortunate happening and move on. If you're pissed enough at the restaurant, don't return or recommend the place to others. I personally think it's not worth the effort to pursue it legally and would just forget about it.

                                          2 Replies
                                          1. re: josephnl

                                            Thank You! If the op has the means to dine at NE finest, they most likely have dental coverage...Stop looking for other people to blame and move on

                                            1. re: BiscuitBoy

                                              lots of jumping to conslusions here......................
                                              I make a very good living, I can afford to dine at NE finest restaurants.
                                              I am in my late 50s
                                              I have never had dental insurance in my life, I pay for all my own dental bills.

                                              This is not about the OP's means, but the poor way the establiishment handled the situation.

                                              The manager was cut off at her kness by a jerk owner

                                          2. I'd worry only if I cracked a tooth on a matzo ball

                                            1 Reply
                                            1. re: beevod

                                              has been known to happen when there is a piece of gribenes in the center <VBG>

                                            2. We just wanted to hear opinions from other "hounds." We will probably do nothing, but I agree with the poster who says the mark of a restaurant is how they handle a problem...maybe we should stick to Danny Meyer restaurants.

                                              1 Reply
                                              1. re: nancyl126

                                                Danny Meyer absolutely sets the standard. His book "Setting the Table" should be required reading for everyone working in the restaurant industry. I love his restaurants, of course fo the food, but especially for how guests are treated.

                                              2. Whatever you do it will cost a WHOLE LOT money on lawyers, time wasted in court and frustration ...

                                                Just let it be ... stuff like that happens ...

                                                just don't give money to lawers!!

                                                M.

                                                3 Replies
                                                1. re: Maximilien

                                                  Max...
                                                  FYI>>>more than 90% of suits are settled and never go to trial, no time wasted in court. Insurance companies don't like to pay, they like to delay, sp laymen are often forced to sue to get things rectified. The insurance company has the use of the money until they settle just before the actual trial.

                                                  An issue such as this could probably be handled with 1-2 hours of an attorney's time and a couple of phone calls and demand letters, chances are a suit would not have to be filed.
                                                  And for those of you in MA this is probably going to fall under M.G.L. Chapter 93A consumer protection laws and be arbitrated.

                                                  1. re: bagelman01

                                                    I wonder if the restaurant is in MA- the Op stated it was in New England, and we haven't gotten any moreinfo!

                                                    1. re: bagelman01

                                                      Read some of OP's other posts, and it seems the restaurant was in Vermont. Wonder what their laws are.

                                                  2. I believe in the art of negotiation in this situation. It sounds like the owner may have had instances of false claims that are usually few and far apart. The owner sounds like an insurance company that refuses any claim on the first volley because most people will not press the situation.

                                                    I would make a second call or visit the restaurant and speak directly to the owner, if possible. Explain to him that you just want to have your dental bill paid and at this point, that's it. If he is persistent, you can remind him that if you get a lawyer involved, it makes it possible that this situation can become public as small things get blown out of proportion is your lawyer decides to try to find other customers that may have had the same problem you're having. You can add in that if this is taken care of now, it ends and there will be no mention of it again. I used this negotiating tactic with a large propane company that did not want to abide by a contract when the energy cost went sky high and it worked.

                                                    Another option is to split the bill if you're willing to do that. Otherwise, you may have to contact a lawyer that will send them a letter of intent of being sued and that should do the trick.

                                                    3 Replies
                                                    1. re: awm922

                                                      art of negotiation? interesting. sounds more like extortion. since the op admits to not having a shred of evidence that the restaurant did anything whatsoever wrong. . . wow. i'd like to be a fly on the wall during the encounter with the owner. otoh, since restaurateurs are as a group known for being naive and unassertive, i can't imagine what could possibly go wrong when this lady walks onto the restaurant's private property and starts making threats.

                                                      1. re: awm922

                                                        "you can remind him that if you get a lawyer involved, it makes it possible that this situation can become public as small things get blown out of proportion is your lawyer decides to try to find other customers that may have had the same problem you're having. You can add in that if this is taken care of now, it ends and there will be no mention of it again"
                                                        ~~~~~~~

                                                        Ummm, that's negotiation? Negotiation is a mutual discussion and arrangement to the terms of a contract - but if presented as "if this is taken care of now, it ends" - that's nothing but a Tony Soprano extortion, as soupkitten said.

                                                        1. re: LindaWhit

                                                          So every time a lawsuit is threatened its extortion?

                                                      2. The replies in this thread have drifted widely from the original topic, and are no longer focused, even tangentially, on food. We're going to lock this topic and we'd ask everyone to return to discussing food.