ATLANTA (Legal Newsline) - A customer who plunged his hand into a pitcher of liquid nitrogen at the urging of an employee who bet him the value of two dinners can sue the restaurant for negligent hiring and supervision, a Georgia appeals court ruled, even as it dismissed claims the worker was acting in the interests of his employer.
Brett Hasty met a friend in March 2016 for dinner at the Elevation Chophouse, owned by Friendship Enterprises. They ordered liquid-nitrogen martinis, which “smoke” when poured into the glass. Elevation employee Phillip Wilson brought the drinks and a pitcher of liquid nitrogen to the table where, according to Hasty, Wilson told them he and other employees had stuck their hands in the liquid for up to 3 seconds without harm.
Hasty said Wilson offered to pay their dinner bill if he could beat the three-second mark. Hasty plunged his right hand in the pitcher for four seconds and Wilson paid the bill. Hasty went home and two hours later went to the hospital burn unit, where he stayed for several days to treat chemical burns of the hand.
Friendship moved to dismiss the lawsuit, arguing Wilson was acting outside the scope of his employment when he made the wager. The trial judge denied the request and the Georgia Court of Appeals agreed to review the decision on interlocutory appeal.
In a June 6 decision, the appeals court partly reversed, granting Friendship summary judgment on the questions of respondeat superior (liability for the actions of an employee), premises liability, nuisance and negligent training claims. But because Friendship didn’t make arguments against the claims of negligent hiring, retention or supervision, the appeals court allowed those to proceed.
On the question of respondeat superior, the court cited a remarkably similar case from 2009: Leo v. Waffle House, in which an employee offered a customer five dollars to drink a concoction of inedible items including dishwasher detergent. The customer accepted the offer and suffered serious internal injuries. The appeals court in that case ruled the act “was not committed in the furtherance of Waffle House’s business.”
The nitrogen stunt was similar, the Court of Appeals said.
“Wilson’s dare to Hasty, offering to compensate him if he stuck his hand in the liquid nitrogen, was neither within the scope of his employment nor in furtherance of the restaurant’s business,” the court ruled. Wilson had been specifically trained not to allow customers to touch the nitrogen and testified in his deposition that no managers had ever asked him to do so.
The appeals court similarly dismissed the claim of premises liability, saying the restaurant had no way of knowing Wilson would dare Handy to stick his hand in liquid nitrogen and no customer had done so before. Nuisance also requires the proprietor to know of the risk beforehand, the court said.
The appeals court rejected Friendship’s argument Hasty accepted the risk of plunging his hand into liquid. nitrogen. Hasty denied receiving any warning and said he assumed it was not dangerous based on what Wilson had told him.
Friendship also erred by relegating its arguments on negligent hiring, supervision and retention to a footnote, in which it said they weren’t independent theories of recovery and Hasty abandoned them by failing to discuss them in his response to Friendship’s motion to dismiss.
Wrong on both counts, the appeals court ruled. The negligence claims are separate actions and Hasty, as the non-moving party, had no obligation to respond at all.