ST. LOUIS (Legal Newsline) - A man who claims he had a severe allergic reaction from eating crab-stuffed cod he thought was hash browns will have to live with $5,000 in damages, not the $50,000 he was seeking, after a Missouri appeals court upheld a jury verdict finding him 90% at fault for his own injuries.
In April 2015, Andrew Denney availed himself of the buffet at Syberg’s restaurant. It included what he later described as a “giant” shrimp station and a menu describing various seafood items that he didn’t read. He claims a restaurant employee told him the cod was actually hash browns, so he ate it despite suffering from a severe seafood allergy.
On his way home he experienced itchy skin, chest pain and swelling in his throat and defecated in his pants. He took six anti-allergy tablets and called for help. Emergency services personnel administered intravenous anti-allergy medicine, his symptoms improved and he refused a trip to the hospital.
Denney then sued Syberg’s, claiming negligence and inflection of emotional distress. A jury believed Denney, awarding him $50,000 in damages after a two-day trial, even as it found the plaintiff 90% responsible for his own injuries. The judge cut damages to $5,000 and Denney appealed.
The Missouri Court of Appeals, Eastern District, upheld the lower judgment in an April 11 decision.
On appeal, Denney claimed the restaurant’s lawyers failed to establish he had a duty to protect himself. That argument fails, the appeals court said, because Missouri law has long recognized that everyone has a duty to exercise ordinary care not to injure themselves or others. In this case, the court said, Denney acknowledged he never told restaurant employees about his allergy, didn’t read the menu and the buffet “included a `giant’ shrimp station with an ice sculpture covered in peel-and-eat shrimp.”
Further, he couldn’t identify the employee he says told him crab-stuffed cod was hash browns and Syberg’s had a point-of-sale system to alert staffers when a customer told them he has a food allergy.
“Denney’s knowledge of his seafood allergy, the presence of seafood on the buffet, his failure to read the menu, his failure to specifically request seafood-free food, or avail himself of Syberg’s point-of-sale system constitutes substantial evidence from which a reasonable jury could conclude Denney was partially at fault,” the court ruled.
Denney also tried to blame the restaurant for symptoms he says he suffered after sending the paramedics away, including from the drugs they injected him with. But he failed to provide any evidence the paramedics committed malpractice, the appeals court said, and the judge properly excluded evidence from his subsequent trip to the hospital. The post-treatment symptoms didn’t fall under the “sudden onset” rule, under which plaintiffs can skip expert testimony when it is obvious to a lay juror that an injury was caused by the defendant’s actions, the court added.
Finally, the court rejected Denney’s arguments several jurors should have been struck including a woman who asked during voir dire “how drunk was he when he ate the shellfish?” The judge was entitled to conclude the woman was joking when she said it and later affirmed her lack of bias, even though she, like others, also said she ate at Syberg’s and enjoyed the restaurant.