Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“While visiting a local restaurant chain, I ordered my 10 year old son a strawberry daiquiri with specific instructions stating that alcohol should not be added to the drink. After drinking the about 2/3 of the drink, we realized that the daiquiri that was given to my son was not a virgin but was made with alcohol. We complained to the manager and he was very apologetic about the incident. My question is, should I write this off as a mistake or should I seek restitution from the restaurant for serving my 10 year old son an alcoholic beverage by mistake.”If it truly was a mistake, then negligence law would apply. In a Court, you’d need to show Duty, Breach, Cause and Damages. Duty is easy, the resturant had a duty to act as a reasonable restaurant and serve you what you asked for. They “breached” that duty when the put alcohol in your son’s drink. But/for them putting alcohol in your son’s drink you would not have been harmed so there is cause. And damages. Oh yeah. Damages. How were you and/or your son damaged? How much did you spend at the hospital? How violently ill did your son become? How many hours of tutoring did you have to purchase to get your son back on track at school? What are his costs for rehab? You will need to prove general and special damages as part of your case in negligence. So if you ain’t got those, you probably do not have much of a case.
Question: If, on the other hand, it can be shown that it was an intentional act to put alcohol in the drink, a different standard would apply. A “battery” is an intentional harmful or offensive touching. Though it might be difficult to prove, if you can show that they intentionally tried to spike your son’s drink, not only would you be able to get general and special damages, but perhaps also punitive damages.A jury may find some comparative liability on your part for ordering a daiquiri of any kind for your son. He also drank most of the drink, so he may have actually liked the drink. These sorts of annoying “facts” may reduce your recovery. However since damages may be difficult to show in the first place, recovery is not guaranteed.
Answer:
If you could find an attorney to take your case on a contingency basis, then you would not need to come out of pocket for litigation. There are enough attorneys out there that if you are truly impassioned about this, you could schedule some free consultations or make some phone calls to see if anyone would pick up your banner. I ran the facts past a couple of attorneys who said they would not take the case, mostly because of the damages dilemma. I personally would chalk it up to mistake, but that is only my opinion and not legal advice.
