Waiter Arrested For Serving Wrong Food to Allergic Diner

[gulfporter]

Police are investigating the case and have not charged the waiter.  

 

Should the waiter be held criminally responsible?

 

http://www.ctvnews.ca/health/who-s-to-blame-for-allergic-reaction-after-waiter-serves-wrong-food-1.3016238

[lindag]

I cannot believe there was any intent on the behalf of the waiter which I assume is the main issue.

He was simply incompetent.  I hope the restaurant was heavily insured.

[gulfporter]

In this article, the diner alleges the waiter was drinking shots with people at another table while waiting on him and his partner.  There are always (at least) two sides to any story.  And the diner has already begun a civil suit against the waiter and the restaurant.  

 

http://news.nationalpost.com/life/food-drink/waiter-could-face-criminal-charges-after-serving-salmon-to-customer-with-seafood-allergy

 

[gfron1]

This stuff pisses me off (probably for the wrong reasons). As I read the story it is the kitchen's fault - did I miss that the order was written incorrectly? I saw that the server neglected to warn the kitchen or note it on the order, but If I read closely enough then the kitchen made the mistake, and quite frankly in a darkly lit restaurant tuna and beef tartar would look similar enough that no one would question it until the food hit their mouth, and even then most would miss the difference in taste and texture.

 

Second, why is it in these allergy-near-death cases the story starts with "the customer left his epi-pen in the car." If you are that damn allergic to anything, why is the pen leaving your body?! 

 

Yes, the waiter is an idiot. Yes, the kitchen screwed up. But friggin' personal responsibility for doing your own due diligence when living in a world of idiots.

[Martin Fisher]

Hmmm!

If I had a serious food allergy I WOULD NOT put any trust in a server pounding shots (or a sober one)!!

 

Anyway, innocent mistakes happen!
This IS the very reason why I stopped working in intermediate care for folks with serious intellectual disability+.
Shifts between three community homes of four residents each — no less than two caregivers at any time (often understaffed.)
Several of the residents had food allergies or other serious food related issues.
It's VERY easy to make a mistake when distracted by one or more of the residents acting-out, etc. ― which was VERY common.
And then there was the issue with dispensing meds — some of them very powerful and dangerous.
There were several safeguards in place but it was still possible to make a mistake when distracted!!!

An innocent mistake could have been considered negligence — too risky.
I loved working with the residents but had to give it up — too much stress!

[liuzhou]

25 minutes ago, gfron1 said:

the order was written incorrectly?

 

The article says the order wasn't written down.
 

25 minutes ago, gfron1 said:

tuna and beef tartar would look similar enough

 

It was salmon, not tuna.

 

If you can't tell the difference between salmon and beef, visually or by taste, are you sure you would want to take your allergy to a restaurant? I'd stay home.

Edited August 7, 2016 by liuzhou (log)

[pastrygirl]

1 hour ago, gfron1 said:

 I saw that the server neglected to warn the kitchen or note it on the order, but If I read closely enough then the kitchen made the mistake, 

 

Where are you finding the info to blame the kitchen?  If the server put in the order, did not mention the allergy, and picked up the order, it seems all the kitchen did was their job. Get ticket for salmon tartare, plate salmon tartare. 

 

If it was cross contamination and the kitchen had been informed of the allergy, different story. But it sounds like the server either put the order in wrong or grabbed the wrong dish off the pass. The dining room may be dark but the kitchen should have been well lit enough to see salmon vs beef color. 

[gfron1]

I've re-read and the article says that the diner didn't see the server write the order down - very common. It doesn't say that the order wasn't in writing at some point. The server mostly likely remembered the order (very common) and entered it into their POS at the server station which the customer would not have seen. A piece of paper hit the kitchen, and nowhere was it mentioned if the paper said salmon (tuna or salmon would be irrelevant in a dark restaurant) or beef. 

 

So the article isn't complete enough to say if the kitchen is off the hook. Regardless, if the drinking is true, then the restaurant is culpable because they allowed an employee to drink on the job, and that may have impaired their judgment.

[pastrygirl]

In what scenario would the kitchen be ON the hook?  Server ordered salmon, kitchen made salmon, server served salmon = 100% server error.  Server ordered beef, kitchen made salmon, server served salmon - it is still the server's job to match the plate with the ticket and catch an error, whether it was supposed to be sauce on the side, extra cheese, or a different protein or dish.  If the kitchen did make a mistake and the server didn't catch it, the server still bears at least half of the responsibility, especially if he was the only one who knew of the allergy.  Unless the kitchen was out of beef and substituted salmon without telling anyone ...

 

Unfortunately, I've worked with some servers whose knowledge of food was embarrassingly poor.  It's possible the guy was just too dumb or drunk to know he was serving the wrong dish, but I still can't blame the kitchen for that! 

 

Should the server be held criminally responsible?  I don't know about jail time, but I think some community service and education about food and allergies would be appropriate.  And hopefully the restaurant has liability insurance that will cover medical bills (if, despite being Canadian, that's an issue).

 

Sad story, but happy that the diner pulled through.  It must have been a horribly traumatic evening all around.

 

 

[hathor]

Sounds like a flurry of mistakes...but where is the criminal intent? 

And as gfron says, if you're allergy is that severe, carry the damn epi-pen everywhere. 

I don't think the world is full of idiots; but surely the diner bears some responsibility for taking care of himself. 

[djyee100]

1 hour ago, gfron1 said:

...if the drinking is true, then the restaurant is culpable because they allowed an employee to drink on the job, and that may have impaired their judgment.

 

The restaurant also hired an apparently incompetent employee, and failed to supervise him. I think this is where the action is when it comes to the law.

 

Bizarre situation with tragic consequences. Remember it's Canadian law, not American law. No doubt there's a civil suit for damages here against the restaurant, which is responsible for the hiring and supervision of its employees. But criminal negligence against the waiter? From Wikipedia (and take this with a grain of salt), criminal negligence in Canadian law means "wanton or reckless disregard for the lives or safety of other persons."

https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Criminal_Negligence

The classic example is somebody who drives his/her car onto a crowded sidewalk. The driver intends his/her actions, i.e., driving on the sidewalk, but is totally reckless about the consequences. I don't know if the waiter's actions rise to this level of culpability for a crime. Realistically, I think the restaurant will take the hit for this one in the civil lawsuit.

 

Edited August 7, 2016 by djyee100 (log)

[gfron1]

1 hour ago, pastrygirl said:

In what scenario would the kitchen be ON the hook? 

Like I said, neither article is complete so we don't actually know if there was a written ticket, if the ticket said the correct thing, if there was cross-contamination, if the expeditor called up for the wrong dish. There are plenty of scenarios where the kitchen could be on the hook, but none of those details are presented for or against in the article.

[pastrygirl]

49 minutes ago, gfron1 said:

Like I said, neither article is complete so we don't actually know if there was a written ticket, if the ticket said the correct thing, if there was cross-contamination, if the expeditor called up for the wrong dish. There are plenty of scenarios where the kitchen could be on the hook, but none of those details are presented for or against in the article.

 

Which is why, as a chef, I'm surprised you went there.  I know I'd rather blame FOH!   It does sound like it was actually a salmon dish, not cross-contamination. 

 

So do you think the restaurant is liable?  Negligent?

 

I mean, I try to keep my peanut butter and my wheat flour away from other ingredients, but I've had cases where people put a sample in their mouth - that had a sign saying 'contains gluten' - then asked what that crunch was and spit it out when I told them it had wheat.  One would think that people with severe allergies would have had enough bad experiences to trust no one, but also hope that telling someone twice was enough to protect yourself.  And who knows, maybe the diner was drinking too and didn't pay attention to the food when it arrived.  There have been similar lawsuits, haven't there been some involving peanuts resulting in jail time, like a recent one in the UK involving curry?

[gulfporter]

If the part of the story about the waiter doing shots when this incident happened is true and can be proven, I can see the restaurant being liable for civil damages as well as the waiter being criminally liable.  Accidents happen, but if the waiter was drinking on the job in view of customers (that's what the diner alleges) one assumes there was a restaurant manager who also witnessed his drinking. 

[dcarch]

I bought a gyros from a food truck yesterday. There was a big sign on the truck:

 

"If you have any kind of allergy, please don't buy food from me."

 

So much simpler. With lawyers everywhere, you never know.

 

dcarch

[Anna N]

Server will NOT be charged

Click

[lindag]

 

12 hours ago, Anna N said:

Server will NOT be charged

 

I'm glad.

[gulfporter]

Glad to hear that too. 

 

 I am in San Miguel de Allende this month and have seen many restaurant menus with a printed message at the bottom asking that you tell your server about any food allergies.  Since this is an area with a number of English-speaking expats and visitors, the warning is on both the Spanish and English menus.  

[quiet1]

On August 7, 2016 at 5:32 PM, dcarch said:

I bought a gyros from a food truck yesterday. There was a big sign on the truck:

 

"If you have any kind of allergy, please don't buy food from me."

 

So much simpler. With lawyers everywhere, you never know.

 

dcarch

 

I have a pretty bad shellfish allergy (yes, I take Benedryl and my epi pens anywhere we go to eat) and frankly, I don't mind being told if a place doesn't feel they can serve me safely. (Usually this is at ethnic restaurants where some stuff is prepared in advance or ingredients are imported and so they can't be 100% certain there isn't cross contamination or a stealth ingredient.) As long as they handle it politely, we just go elsewhere and usually if friends or family go back later without me, I find out if the food is good and then will recommend it to other people who don't have allergies, because good food plus good service is worth it.

 

Though I would be sad if all places took that approach since then I'd never be able to go to restaurants. Which would be sad.

[lindag]

I'm a bit skeptical about the waiter 'doing shots' story that the diner was telling.

If so, I hope the waiter was at least fired from his position.

[Anna N]

Just about everything in this story has seemed fishy (pun intended) to me from the start.  I don't see anything funny about anaphylactic shock as I know all about it but that very fact makes me sceptical of so many things in this whole scenario.  I hope we have heard the last of it.

[chromedome]

I saw this in the news before it was posted here, and have been thinking about it ever since. 

 

Leaving aside the merits/question marks of this particular case, I have to think that at some point cases will go to trial. If a restaurant is informed of a potentially-lethal allergy, accepts responsibility for delivering a safe meal and then fails to do so, it seems likely to me that charges will be laid. I'd expect it to happen first in the US, where district attorneys are political animals, as opposed to Canada where prosecutors are simply government employees. 

 

I refer here to criminal trials, rather than civil liability issues. I'm sure there are already plenty of the latter. 

[Anna N]

The story continues. The diner is now suing.