Denney v. Syberg’s Westport, Inc., No. ED 110498, 2023 WL 2877085, at *2 (Mo. Ct. App. Apr. 11, 2023)
In this case a customer, Denney, who had a serious seafood allergy, engaged in the perilous behavior of dining at a “seafood buffet.” After eating crabbed stuffed cod experienced itchy skin, chest pain and swelling in his throat which he believed was caused by an allergic reaction to the food he had eaten. He took six anti-allergy tablets and then felt nauseous and began defecating in his clothing. Paramedics arrived and administered additional anti-allergy medication intravenously. Denney acknowledged his symptoms had improved and refused the paramedics’ offer to transport him to the hospital.
Denney claimed that Syberg’s should not have been allowed to instruct the jury on his comparative fault because Syberg’s had not come forward with “substantial evidence” that he had a legal duty to take reasonable precautions before dining. Also, Denney claimed that an unidentified employee told him the crab stuffed cod was actually hash browns.
In evaluating Denney’s claim the Court of Appeals summarized the law of comparative fault as follows:
Missouri law has long recognized every person has the duty to exercise ordinary care to so conduct himself as not to injure others and is liable to one who is harmed by a breach of that duty. The exercise of ordinary care requires precautions commensurate with the dangers to be reasonably anticipated under the circumstances. In other words, the law imposes on every person a duty to act as a reasonable person would act under the same or similar circumstances. The duty to exercise ordinary care is equally applicable to the allocation of responsibility according to comparative fault. In pertinent part, Missouri’s comparative fault law defines “fault” as including “acts or omissions that are in any measure negligent or reckless toward the person … of the actor or others. The concept of “fault” includes both the “conduct of the plaintiff … as well as a defendant. Therefore, under comparative fault, the duty to exercise ordinary care under the circumstances applies equally to plaintiffs and defendants and is simply a legal recognition of individual responsibility for voluntary behavior.
The Court summarized the evidence, which it found substantial, of Denney’s fault finding that “Denney testified he was aware he had a seafood allergy but dined at the buffet without informing restaurant staff of that allergy. He further testified the menu was posted visibly and listed fish and shrimp, but admitted he did not read it. He also acknowledged the buffet included a “giant” shrimp station with an ice sculpture covered in peel-and-eat shrimp. While Denney testified a Syberg’s employee told him the dish at issue contained hash browns, the employee was never identified. He also testified he knew crab meat looks like hash browns when removed from the shell. Moreover, Denney’s own expert witness, a culinary arts instructor for the Missouri Department of Corrections, answered “yes” when asked if it would be “unreasonable” for him not to read the menu.”
It’s unlikely most diners would misidentify crabmeat to be hash browns, as Denney did. However, the Court’s holding might be briefly summarized as “Order the burger if you have a seafood allergy.”