Tuesday, October 06, 2009, 9:24 AM

COA: Failure to Properly Assist Poisoned Customer = Grounds for Punitive Damages

Today the COA held that a restaurant's policy of filling out an incident report before assisting a customer who drank poisoned water was willful and wanton conduct justifying an award of punitive damages. The case is Everhart v. O'Charley's.

O'Charley's accidentally served Ms. Everhart a glass of water that had cleaning fluid in it. The chemicals bleached her shirt, and she immediately felt ill and ran to the restroom. An O'Charley's manager came over to the Everharts' table and began asking questions related to an incident report he was supposed to fill out per company policy. When Mr. Everhart asked what was in the pitcher of water that his wife's drink came from, the manager refused to answer, and instead continued asking questions related to the incident report. He also declined to look at the label on the cleaning chemical to determine what the first aid instructions were. Ms. Everhart sustained sores on her mouth, reflux, indigestion, and a sore throat. She also testified that she suffered emotional distress from not knowing what kind of chemicals she had ingested and contemplating the possible consequences of the poisoning. The jury found that O'Charley's was liable for $350,000 in punitive damages (this amount was later reduced to $250,000).

The COA affirmed the award of punitive damages, finding that O'Charley's' conduct was willful and wanton. One of O'Charley's' regional operations directors testified that O'Charley's corporate policy was that managers must complete the incident report form before doing anything else unless the customer was "convulsing, passed out on the floor," or "bleeding profusely." The COA found that this policy, along with the mamager's refusal to determine what Ms. Everhart drank and to investigate first aid instructions on the cleaner's container constituted "conscious and intentional disregard of and indifference to the rights and safety of others," and that O'Charley's knew or should have known that such actions were "reasonably likely to result in injury, damage, or other harm."


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