Choking on a fish bone in a hotel restaurant: Who is liable?

In this week’s article, we discuss three cases, Amiano v. Greenwich Vil. Fish Co., Inc., 2017 N.Y. App. Div. LEXIS 4458 (1st Dept. 2017); Vitello v. Captain Bill’s Restaurant, 191 A.D. 2d 429 (2d Dept. 1993) and Yong Cha Hong v. Marriott Corp., 656 F. Supp. 445 (D. Md. 1987), all of which are instructive on the issue of who should be liable to a restaurant patron who is injured after choking on a fish bone during a wonderful dinner.

Terror Targets Update

U.S. Nuclear Facilities

In Perroth, Hackers Are Targeting Nuclear Facilities, Homeland Security Dept. And F.B.I. Say, nytimes.com (7/6/2017) it was noted that “Since May, hackers have been penetrating the computer networks of companies that operate nuclear power stations and other energy facilities, as well as manufacturing plants in the United States and other countries. Among the companies targeted was the Wolf Creek Nuclear Operating Corporation, which runs a nuclear plant near Burlington, Kan., according to security consultants and an urgent joint report by the Department of Homeland Security and the Federal Bureau of Investigation last week”.

Dallas, Texas

In ‘Active shooter’: Dallas Wyndham Hotel evacuated after shots fired, www.eturbonews.com (7/3/2017) it was noted that “Police in Dallas, Texas, responded to reports of an active shooter inside a Wyndham hotel, where rooms were evacuated. One man was taken into custody and another man was seen being taken into an ambulance”.

Boston Logan Airport

In 9 people injured when taxi rams outdoor café at Boston Logan Airport, www.eturbonews.com (7/3/2017) it was noted that “A taxicab struck a group of pedestrians at the Boston Logan International Airport taxi staging area injuring at least nine people. The incident took place at the outdoor café near the airport’s taxi stand”.

Laptop Ban Lifted For Some

In Personal electronic devices ban lifted on Qatar flights to the United States, www.eturbonews.com (7/6/2017) it was noted that “The airline gained the exemption earlier today after U.S. officials inspected the security measures in full operation at Qatar’s state-of-the-art Hamed International Airport”.

In Chiem, US Lifts Laptop Ban For Emirates, Turkish Airlines, law360.com (7/5/2017) it was noted “Two other Middle East carriers scored U.S. approval Wednesday to allow large personal electronic devices such as laptops in their aircraft cabins aboard U.S. bound flights with Emirates and Turkish Airlines now exempt from the ban after they tightened their passenger screening procedures in Dubai and Istanbul”.

Travel Ban Update

In US Judge Rejects Hawaii’s Bid to Exempt Grandparents From Donald Trump Travel Ban, travelwirenews.com (7/7/2017) it was noted that “A US judge rejected Hawaii’s bid to exempt grandparents from President Donald Trump’s temporary travel; ban on Thursday, but ruled that the state could ask the US Supreme Court directly to clarify which parts of the order should take effect. US District Judge Derrick Watson in Honolulu had been asked to interpret a ruling from the US Supreme Court that revised parts of Trump’s March 6 executive order banning people from six Muslin-majority countries for 90 days”. See also: Ganfarez & Kolodzief, What to Know About High Court’s Travel Ban Ruling, law360.com (7/6/2017).

Punching Flight Attendant

In Delta flight rerouted back to Seattle after passenger ‘punches attendant’, travelwirenews.com (7/7/2017) it was noted that “A Delta Airline flight headed to Beijing returned to Washington state after a passenger assaulted a flight attendant and injured another passenger nearly an hour after takeoff, officials said…The 23-year-old man, sitting in the first class cabin, reportedly punched the flight attendant on Delta Flight 129…Fellow passengers stepped in to try and subdue the man, with one other person injured”.

New York Subways “Summer Of Hell”

In Wilson, When the Job Is One Never-Ending Signal Malfunction, nytimes.com (6/20/2017) it was noted that “It’s a tough time to work on the rails that move millions of people to and around New York City every day. Subway delays and disruptions have become expected and planned for in one’s schedule, while the Long Island Railroad and New Jersey Transit, two the nation’s busiest commuter lines, have been dogged by derailments and have warned riders to be prepared for a ‘summer of hell’ as Amtrak repairs deteriorating infrastructure at Pennsylvania Station. Riders react, every day. And those reactions are not aimed at the management of the transit agencies or at the two governors…who control them. Subway and train operators, conductors and station agents spoke of the toll of being the faces of their increasingly unreliable system. They are voices grimly familiar to riders on the train, via vague announcements – ‘we should be moving shortly’ [but not often heard speaking about their work]. Their tribulations are lost in the complaints of the passengers”.

In Fitzsimmons, Cuomo Declares a State of Emergency for New York City Subways, nytimes.com (6/29/2017) it was noted that “Day after day, subway riders in New York City [I am one of them] have voiced a steady drumbeat of grievances as the century-old system has descended into disarray. Trains are unreliable. Rush hour malfunctions paralyze the city. When a train derailed in Manhattan this week, injuring dozens of people, it raised concerns over whether the subway was even safe. On Thursday, Gov. Andrew M. Cuomo, the person most responsible for the subway’s fate, signed an executive order declaring a state of emergency, pledged $1 billion for improvements and moved to make it easier for the Metropolitan Transportation Authority to buy badly needed equipment…It had taken some prodding and a fusillade of criticism to bring Mr. Cuomo to this moment”. See also: Santora & Fitzsimmons, Subway Derailment in Manhattan Injures Dozens, nytimes.com (6/27/2017).

Tougher Airport Security Rules

In Maidenberg, Airlines Face New Security Rules in Summer Scramble, nytimes.com (6/30/2017) it was noted that “New directives from the Department of Homeland Security require airlines that fly to the United States to step up screening of passengers for trace amounts of explosives and, in some cases, impose more stringent security checks…Aviation specialists and industry officials predicted that the new mandates would add to the challenges of airports and airlines, particularly smaller ones, during the busy summer travel season. The directives said the airports must have the explosive detection devices in place in 21 days and conduct the tougher security checks by the fall …The rules require that 280 airports that are the last point of departure for flights to the United States have explosive detection technology, such as devices that can detect bomb residue on passengers’ hands, in place within weeks…Overseas airlines must bring their security procedures in line with the standards for American airlines”. See also: Nixon, Passengers Flying Into U.S. to Face More Scrutiny, but Laptops Allowed, nytimes.com (6/28/2017).

Airlines Fined In Mexico

In Shapiro, Mexican Consumer Agency Fines Airlines, Establishes Passenger Rights, meetings-conventions.com (6/28/2017) it was noted that “Profeco, the Mexican federal prosecutor’s office, fined five airlines yesterday for a total of 22.4 million pesos (US$1.25 million) for violating passenger rights. Specifically, the carriers were penalized for charging an extra fee for the first piece of checked luggage on travel to the United States and Canada-a practice that had picked up traction over the past year. Among those fined were the Mexican carriers Aeromexico (US$351,000), Interjet (US$284,872), Volaris (US$251,357) and VivaAerobus (US$234,600) as well as U.S.-based JetBlue Airways (US$128,472)…The agency levied the fines (based upon) laws enacted to protect consumers against misleading advertising, discriminatory actions, unfair contracts and other abusive practices by the airlines”. Bravo.

Crawl On Board, Please

In Japanese airline forces wheelchair user to crawl on board, travelwirenews.com (6/28/2017) it was noted that “Japanese low-cost carrier Vanilla Air asked a man paralyzed from the waist down to climb a ladder to enter the plane, saying safety rules prohibited him from being carried aboard. The incident triggered outrage, prompting the airline to apologize”.

The Lucky Coin Throw

In Woman delays fight with “lucky” coin-throw into engine, travelwirenews.com (6/26/2017) it was noted that “Police took away an 80-year-old woman Tuesday after fellow passengers reported that she was throwing coins at the plane during boarding of China Southern Airlines flight CZ380 on the tarmac of Shanghai’s Pudong International Airport…officers found nine coins at the scene, including one that fell into the engine of the Airbus A320 aircraft”.

No Such Thing As Free Fuel

In Pakistan raises death toll to 157 from fuel truck fire, travelwirenews.com (6/26/2017) it was noted that “The truck, carrying some 25,000 liters of gasoline, was traveling from the southern port city of Karachi to Lahore…when the driver lost control and crashed on a highway outside the town of Bahawalpur early on Sunday. Alerted by an announcement over a mosque loudspeaker that an overturned tanker truck was leaking fuel, scores of villagers rushed to the scene to collect the spilled fuel when the blaze ignited. The wreck had exploded, engulfing people in flames as they screamed in terror”.

Great Barrier Reef Worth Plenty

In Great Barrier Reef valued at $42.5 billion, http//travelwirenews.com (6/26/2017) it was noted that “Australia’s Great Barrier Reef, devastated by two consecutive years of coral bleaching, is valued at over A$56 billion (US$42.5 billion) making it ‘too big to fail’…The figure, arrived at by accounting firm Deloitte Access Economics, takes account of not only the reef’s contribution to the country’s economy, estimated at A$6.4 billion a year, but its ‘broader economic, social and icon asset value’”.

Saving Baby Joeys

In Solomon, A Quest to Save Bay Kangaroos on a Lonely Australian Highway, nytimes.com(6/26/2017) it was noted that “A few weeks ago, Deb Williams saw another dead kangaroo lying in the middle of the Stuart Highway, a strip of road almost 2,000 miles long that runs north-south through Australia’s center… She slowed her car down from 70 miles an hour and pulled over to drag the lifeless animal off the road…’When I looked at the kangaroo, I saw movement and I thought, ‘You’ve got to kidding me, there cannot be a joey in there…she peeked into the pouch to find the baby, covered in its mother’s blood, but almost unscathed and very much alive…In 2016, an estimated 50 million kangaroos hopped around the four states of South Australia (and) accounted for 82 percent of all animal-car incidents in 2016…Females can house two joeys of varying ages at one time”.

Kangaroo Dressed In Leopard-Print

In Australia outrage over kangaroo shot dead, dressed in leopard-print, travelworenews.com (6/28/2017) it was noted that “A kangaroo dressed in leopard-print has been found shot dead on an Australian roadside tied to a chair and holding a bottle of booze, sparking outrage over the killing Wednesday. The animal, wearing a patterned shawl and propped up with the ouzo drink in its lifeless arms, was discovered in Melbourne’s northeast by a passer-by”.

One Lion Skeleton, Please

In South Africa ignores public opinion: Gives green light to sell 800 lion skeletons to Asia, travelwirenews.com (6/26/2017) it was noted that “The South African Department of Environmental Affairs (DEA) has blatantly ignored public opinion by formally approving the export of 800 lion skeletons to Asia this year…The numbers of African free-range lions have declined alarmingly over the past few decades with only 20,000 remaining today, down from 30,000 just two decades ago. ‘It is irresponsible to establish policy that could further imperil wild lions’”.

South African Airport Robbers

In Biggest South African airport probes inside role in robberies, travelwirenews.com(6/28/2017) it was noted that “‘Airport spotters’ are suspected of providing information about potential victims to waiting criminals…South African authorities are investigating whether any workers at Johannesburg’s main international airport have helped robbers who follow arriving travelers to their homes before mugging them. The management of O.R. Tambo International Airport said on Tuesday that it wants to identify alleged ‘airport spotters’ who provide information about potential victims to waiting criminals”.

South Korean Hotel Thief Charged In Pattaya

In South Korean charged with Pattaya hotel thefts, travelwrienews.com (6/28/2017) it was noted that “A 30-year-old South Korean man has been charged with stealing from two foreign guests at hotel rooms in Pattaya after he was caught trying to break in for a third time…the manager of Qing Lian Youth Hotel in Pattaya…showed up to identify a photo of the suspect as the man who broke into rooms at the hotel and stole guest’s valuables early this month”.

Airbnb Wants To Be A Hotel

In Benner, Airbnb Tries to Behave More Like a Hotel, nytimes.com (6/17/2017) it was noted that “For nine years, Jill Bishop enjoyed the camaraderie of renting out her spare bedroom on Airbnb. Guests hung out on her comfy sofas. They dined together. They shared her bathroom…Then, things changed. Airbnb urged Ms. Bishop to make the bathroom look more like a hotel. New local regulations governing Airbnb meant she had to start collecting city lodging taxes, which made her feel awkward then she had to ask guests for money. And Airbnb began conditioning her to host people who are just looking for a place to sleep=not a home to share….In just nine years, the company has built a global hospitality brand on the backs of homeowners like Ms. Bishop….to expand further, Airbnb must attract travelers who prefer predictability of hotels to the quirky array of spare rooms, empty houses and even the occasional yurt that Airbnb has long touted as its backbone. Travelers accustomed to hotels have come to expect that they can automatically book on Airbnb without having to ask first for the owner’s permission-something that has long been a fixture of the hotel booking process. They want to know that their reservation is firm. They expect fresh lines and; privacy. The also anticipate that hosts will act like hotel staff members, meaning they will be courteous and blend into the background. As a result, Airbnb’s hosts have had to deal with more rules, fees and guidelines. Many gave taken on responsibilities that would be handled at the front desk of a hotel…They are grappling with new tools that let travelers instantly book Airbnbs, much like a hotel reservation system. Airbnb has also introduced recommendations around cancellations and check-in times that mirror those of hotels”.

London Could Be Very Hot This Summer

In Chan & Castle, After London Fire, 11 More High-Rises Found With Combustible Material. nytimes.com (6/22/2017) it was noted that “At least 11 buildings in Britain are clad in combustible material of a kind similar to the cladding that was used on the exterior of Grenfell Tower, the apartment building destroyed in London’s deadliest fire in decades, officials said on Thursday, as they scrambled to conduct safety checks on at least 600 other high-rise buildings. Exterior cladding is thought to have contributed to the rapid spread of the fire which consumed the 24-story Grenfell Tower in West London in just one hour…The fire killed at least 70 people and left hundreds of survivors”.

Surviving Airport Security

In Peterson, Frugal Traveler, How to Survive Airport Security, nytimes.com (6/21/2017) it was noted that “The unavoidable proceeding of going through airport security is about as pleasurable as a trip to the dentist’s office, and sometimes takes just as long…Here is a list of pointers to help keep you sailing though security as efficiently as possible, and with minimal stress: Monitor Wait Times…(see) the dedicated phone app (available for Android and iOS) by the Transportation Security Administration, which is also available for a web browser. Simply add the airport in question and you are able to see wait times as they are reported by fellow travelers…’Trusted Traveler’ Programs. This is the big one. By signing up for one of the Customs ad Border Protection’s ‘trusted traveler’ programs, you will have access to faster screening lines and reduced wait times…TSA PreCheck ($85 for five years) allows for quicker screening at TSA checkpoints (giving you access to the special PreCheck line and granting you permission to keep your shoes on, among other things) after a background check and in-person appointment”.

New York Rickshaw Driver

In Strauss, How Bobby Friese, Rickshaw Driver, Spends His Sundays, nytimes.com (6/23/2017) it was noted that “For the past two years Bobby Friese, 47, has been the sole weekend rickshaw driver at the Mark hotel on East 77th Street. Mr. Friese, who works for Citi Bike during the week, can be spotted on the Upper East Side hauling guests through the park ad to various restaurant and stores every Saturday and Sunday. ‘The rickshaw is a beast’ he said. ‘The hotel has the deluxe model, which weighs about 150 pounds’”.

Autonomous Cars Update

In Wakabayashi, Waymo Scales Back Claims Against Uber in Driverless Car Dispute, nytimes.com (7/7/2017) it was noted that “Waymo…dropped several patent claims against Uber on Friday, scaling back some of its major allegations in a bitter lawsuit over driverless technology…The case…spotlights the arms race surrounding autonomous vehicle talent and technology. It is especially significant for Google-now Waymo-which spent years working on driverless car technology before other tech companies took an interest. But as Waymo searches for a way to make money from self-driving cars, many of its best engineers have left for potential competitors, carrying valuable knowledge of its technology with them”.

In Ewing, BMW and Volkswagen Try To Beat Apple and Google at Their Own Game, nytimes.com (6/22/2017) it was noted that “Volkswagen is delving onto quantum computing. BMW is building a giant new data center. And Bosch this week announced plans to construct a factory to build chips for self-driving cars. The moves are part of an expanding effort by European carmakers and suppliers to build the computing capacity-so-called big data-they will need as vehicles digitize and become driverless”.

In Taub, Envisioning the Car of the Future as a Living Room on Wheels, ytimes.com (6/15/2017) it was noted that “With companies like Google, Uber and others racing ahead to develop fully autonomous vehicles, the era of the driver hunched over the steering wheel may eventually give way to a living room on wheels…designers are already thinking how such technology will change the interior of cars”.

In Chiem, Automakers Ask For Reg Clarity On Self-Driving Cars, law360.com (6/14/2017) it was noted that “Automakers and technology companies asked lawmakers Wednesday to help clear regulatory roadblocks currently preventing more autonomous vehicles from being tested on U.S. roads, saying self-driving car technology is advancing far quicker than regulators can draft guidance and rules for the cars’ operation”.

In Libin, Policymakers Accelerate On Driverless-Car Cybersecurity, law.30.com (7/6/2017) it as noted that “Automakers are likely to support reasonable federal legislation so they can avoid having to comply with a patchwork of disparate requirements in every state. Eighteen states have passed laws related to autonomous vehicles and 33 states have introduced such laws so far this year. Although most of these laws focus on autonomous vehicle testing and safety, members of the Massachusetts and Pennsylvania Legislatures have introduced bills that address cybersecurity”.

In Valasquez, Tests on Self-Driving Cars to Start in Albany Today, newyorklawjournal.com (6/12/2017) it was noted that “Audi will begin testing out its self-driving car in Albany on Tuesday.. The German carmaker is the first in the state to be approved to perform an autonomous vehicle demonstration. The technology in the Audi…is considered to be a Level 3 in autonomous vehicle operations by the Society of Automotive Engineers…That means it can perform hands-free driving at posted highway speeds”.

Uber Update

In Corso, Uber Settles Calif., Ill. TCPA Suits Over Text Messages, law360.com (6/15/2017) it was noted “Uber has settled a pair of Telephone Consumer Protection class actions accusing it of sending texts to individuals on their cellphones without permission”.

In Graf, Uber Arbitration Pacs Mislead Workers, NLRB Judge Says, law360.com (6/14/2017) it was noted that “A National Labor Relations Board judge ordered Uber Technologies Inc. On Tuesday to either revoke or revise a dispute resolution agreement by its software engineers, saying the agreement doesn’t clearly inform employees if their rights to file unfair labor charges with the labor board”.

In Chiem, Woman Rapes By Driver In India Hits Uber With Privacy Suit, law360.com (6/15/2017) it was noted that “Uber was hit with a California federal; suit Thursday by a woman who was raped by her Uber driver in India in 2014, accusing the company executives of mishandling medical records ad trying to discredit her account of the rape by peddling theories that a rival ride-hailing giant was behind it”.

In Manjoo, One Way to Fix Uber: Think Twice Before Using It, nytimes.com (6/14/2017) it was noted that “You gasp with each new report on Uber’s toxicity…Yet if you’re like many people, in a day or two you’ll shrug, pull out your phone and call up an Uber anyway…Don’t do it-at least not without considering the full weight of your decision…Try Lyft. Use a taxi, a bus or a train. Heck, hire a limo and a chauffeur with a golden top hat”.

Travel Law Case Of The Week

As noted in Dickerson, Travel Law, Law Journal Press (2017) at 4.04[2][iv] “At a minimum tainted food, contaminated water, carbon monoxide poisoning, insecticide spraying, black mold, ‘environmental illness’, avian flu, MRSA, polluted beaches, rabies, ant poison or acute pesticide exposure may cause hotel guests to suffer extreme discomfort. As a maximum, such food and water could be fatal. On those occasions when it is proven that the hotel or resort knew or should have known of the contamination, the awarding of punitive damages may be appropriate. Smallpox, typhoid fever, Norwalk virus, Legionnaires Disease and other dangers may be transmitted though food and water, In fact, it is not wise to drink the water in many locales”.

Food And Water Lawsuits

“Food and water related lawsuits are quite common and cover the spectrum from false advertising, water contamination and tainted food containing microscopic bugs often found in vacation spots. Perhaps the most unwelcome bugs are those microscopic organisms lurking in tainted food and contaminated water such as E-coli bacteria and shigella, Salmonella and campylyobacter bacteria. See for example, Averitt v. Southland Inn of Oklahoma, 720 F. 2d 1178 (10th Cir. 1983) (shigella in food); Ansellem v. Host Marriott Corporation, 280 A.D. 3d 357 (1st Dept. 2001)(E=coli in water); Young v. Crookham, 290 Or. 61 (Or. Sup. 2980)(raw sewage flowing into water supply; punitive damages); Corbi v. Harrah’s Hotel & Casino, 2010 WL 4226523 (D.N.J. 2010) (salmonella); Sarti v. Salt Creek Ltd., 167 Cal. 4th 1187)(Cal. App. 2009)(camplyobacter bacteria in appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce).

Love Those Fish Dinners

Fish is very high on the vacationers’ menu and is popular throughout the world. On occasion, the vacationer may get sick from eating fish poorly prepared or of unknown origin. See for example, Tobie v. Don Pepe Corp., 646 F. Supp. 620 (D.P.R. 1986) (poisonous hind fish); Hoch v. Venrure Enterprises, Inc., 473 F. Supp. 541 (D.V.I. 1979) (poisonous hind fish); Feinstein v. Curtain Bluff Resort, 1998 WL 458060 (S.D.N.Y. 1998)(guest suffers ciguatera poisoning after eating fish).

What About Fish Bones?

It is not uncommon when eating fish to encounter a fish bone. Even though a fish may be carefully fileted there is a good chance that a small, 1cm fish bone may escape the cleaning process. Should the hotel restaurant be liable for any injuries arising from a customer choking on a small fish bone. At least three courts have addressed this issue.

Fillet Of Flounder

First, in Amiano v. Greenwich Vil. Fish. Co., Inc., 2017 N.Y. App. Div. LEXIS 4458 (1st Dept. 2017) “Plaintiff seeks damages for injuries sustained when she choked on a fish bone while eating a fillet of flounder at defendants’…restaurant. Plaintiff’s negligence claim should have been dismissed pursuant to the ‘reasonable expectation’ doctrine, as the nearly one-inch bone on which plaintiff choked was not a ‘harmful substance’ that a consumer ‘would not ordinarily anticipate’.

Perfect Piece Of Fish

Second, in Vitiello v. Captain Bill’s Restaurant, 191 A.D. 2d 429 (2d Dept. 1993) “The plaintiff asserted that she was injured when she ate fish containing a bone at the defendant restaurant. The ‘reasonable expectation’ doctrine, as applied to an action to recover damages for common-law negligence, require a restaurant owner to use ordinary care to remove from the food as served, such harmful substances as the consumer would not ordinarily anticipate…However, despite the waitress’s statement that the fish had been fileted, the injured plaintiff had no right to expect a perfect piece of fish”.

Everyone But A Fool

Third, in Yong Cha Hong v. Marriott Corp., 656 F. Supp. 445 (D. Md. 1987) “Applying the reasonable expectation test to this case, the Court cannot conclude that the presence of a trachea or an aorta in a fast food fried chicken wing is no reasonably to be expected as to render it merchantable, as a matter of aw, within the bounds of U.C.C. 2-14(2). This is not like the situation involving a 1 cm. Bone in a piece of fried fish…Everyone but a fool knows that tiny bones may remain in even the best filets of fish. This case is more like Williams where the court held that the issue as for the trier of fact, on a claim arising from a cherry pit in cherry ice cream”.

Conclusion

Vacationers should take care in ordering and eating local fish. Indeed, expect to find those tiny fish bones even at the best hotel restaurants.

 

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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