Whining & Dining
posted by Frank Pasquale
The Chowhound discussion board offers the following contractually charged dilemma:
A small fly landed in my friend’s glass of wine (it was maybe two thirds full) so we asked for a new glass. She was given a new glass and the remaining wine from our bottle was poured into the glass. The full cost of the wine was on our bill . . . . My question is, should they have comped my friend a glass of wine? What is the norm for when a fly lands in your wine glass?
What’s the best way to legally frame the problem? Has the patron taken on the responsibility to safeguard her own wine once it’s been delivered? Or should some implied warranty of merchantability guarantee a fly-free experience? The unlucky patron here had “two more flies land[] in her new full wine glass shortly.”
Let’s hope it wasn’t too expensive a wine….especially if she’s not a celebrity.
July 22, 2007 at 2:08 pm
Posted in: Economic Analysis of Law, Food
Print This Post
Responses (10)
psb - July 22, 2007 at 2:39 pm
IANAL, but since I was asked to play one on The Net …In Vino Bug-in-Glass …De Drosophila Non Curat Lex?
I guess my view is:
–Resto has absolute obligation to deliver bug-free item to diner.
–If dining outside, diner assumes risk inherent in dining en plein air … although maybe that should not be absolute, say if the resto has contributed
to elevated bug levels [ant problem that should have been headed off, uncollected garbage, split liquids etc]
–If dining inside … hmm, this is the hard case. Dunno if the resto should be “strictly liable” or held to a reasonable standard of care
[screens on windows] then the resto is off the hook (although if no screens, that is observable by the patron, but he probably shouldnt
be forced to make that assessment). But of course this matter really exists in the realm of customer relations, rather than the legal pale.
–Is there some kind of HADLEY v. BAXENDALE “limit” to your claim? e.g. if you are drinking $4000 Chateau Petrus, are you supposed to take out no-fly insurance or self-insure via a coaster? Does it depend
on whether the resto provides you with a adequate cover? If you brought
the wine with you, does corkage include no-fly insurance? [presumably only a remedy at law and not equity would be avail?]
–Amazing the number of people who go into “what kind of bug was it?
in the CH thread. Is there a separate analysis for crawling and flying bugs?
Now it is interesting what happens in the repeat occasions.Do we have to worry about perverse cases like “I slam 75% of the wine and then swish it about getting the bouquet of the
remaining wine to attract a an ambient fly, so I can ‘sue’ for triple damages?” … I’d pay a lot of money to see the waiter yelling “unclean hands! unclean hands!” at a patron.
[for non-lawyer: ://en.wikipedia.org/wiki/Unclean_hands]
Obviously lots of Moral Hazards … “Hmm, why is one of the fly’s legs in your pocket, Mrs Palsgraf?”]
Can a resto offer you a N% discount to relinquish your legal claim to a second glass should a bug land in it?
Anthony D'Amato - July 22, 2007 at 9:49 pm
A group at the Carnegie deli in New York ordered Pepsi’s all around, and one said to the waiter, “last time my glass was dirty, so make sure this time that my glass is clean.” A busboy brought in the tray of Pepsi’s and shouted, “OK, who gets the clean glass?”
Just trying to be helpful here.
Anthony D'Amato - July 22, 2007 at 9:49 pm
A group at the Carnegie deli in New York ordered Pepsi’s all around, and one said to the waiter, “last time my glass was dirty, so make sure this time that my glass is clean.” A busboy brought in the tray of Pepsi’s and shouted, “OK, who gets the clean glass?”
Just trying to be helpful here.
Anthony D'Amato - July 22, 2007 at 9:49 pm
A group at the Carnegie deli in New York ordered Pepsi’s all around, and one said to the waiter, “last time my glass was dirty, so make sure this time that my glass is clean.” A busboy brought in the tray of Pepsi’s and shouted, “OK, who gets the clean glass?”
Just trying to be helpful here.
Anthony D'Amato - July 22, 2007 at 9:49 pm
A group at the Carnegie deli in New York ordered Pepsi’s all around, and one said to the waiter, “last time my glass was dirty, so make sure this time that my glass is clean.” A busboy brought in the tray of Pepsi’s and shouted, “OK, who gets the clean glass?”
Just trying to be helpful here.
James Grimmelmann - July 22, 2007 at 11:36 pm
The implied warranty of fitness for the particular purpose on the wine won’t reach as far as the fly. The fly, after all, isn’t part of the wine; it’s hardly a quality of the goods themselves. I think the warranty, if one exists, applies to the restaurant’s services.
The most fun question here, I think, is remedial. It’s easy to say that the restaurant should comp another glass of wine when the wine comes from the restaurant’s stock. On that logic, if the restaurant is out of that particular wine, then either a replacement glass of comparable type and equal or higher quality than the original glass should be comped. But what about at a BYOB restaurant? (And what if the customer B a particularly rare and expensive B?)
I like the BYOB hypo because it gets us away from the false attractor of products liability and to the real question at issue: what level of sanitary eating environment should the restaurant be deemed to have undertaken to provide?
Frank - July 22, 2007 at 11:58 pm
Anthony–yes, that’s a sadly familiar NY experience for me! here’s to carrying around a water bottle.
James–I like the potential regulatory shift here–send in the health inspectors!….but I’m biased by my long time teaching admin.
psb - July 23, 2007 at 1:07 am
>replacement glass of comparable type and
>equal or higher quality than the original
>glass should be comped.
>
if we’re just having fun here, surely a full glass
shouldn’t be comped, but just up to the line
where the patron stopped drinking … to avoid
the morzal hazard of “fly seeking” behavior.
although, if the restaurant was so dark the
patron had to rely on his sense of touch or, god
forbid, taste, rather than sight to register the
fly …
perhaps “dives” and hole-in-the-wall restos
should include a sign “price of (cheep) wine
reflects the assume-risk-of-keeping-wine-fly-free
discount”.
Brian - July 26, 2007 at 9:16 am
When a fly lands in my wine, I just set him free, and drink the rest of the wine. The wine is good enough to overcome the visit.
And I applaud the fly for evincing good taste.
Brian - July 26, 2007 at 9:19 am
When a fly lands in my wine, I just set him free, and drink the rest of the wine. The wine is good enough to overcome the visit.
And I applaud the fly for evincing good taste.
Leave a Reply