Reference no: EM132229697

In January of 2001, Jerry, age 47, and his family went to a local Benihana’s restaurant to celebrate his 9-year old son’s birthday. Benihana’s is a Japanese hibachi-style restaurant. Hibachis are small, open-hearth steel grills usually with three sides of seating around them on which a chef standing on the open side, prepares everyone’s meal. At hibachi restaurants, a chef performs a “show” for the diners who sit around the grill and observe the cooking of the meal. This night the chef was cooking shrimp on the grill, cutting off the shrimp tails and tossing the shrimp from the grill into the mouths of the diners. As per the restaurant’s protocol for the dinner show, the chef was imitating a Jackie Chan character from the movie “Mr. Nice Guy.” While Jerry was attempting to dodge the shrimp tossed at him, he injured his neck. After the dinner when he arrived at home, Jerry began complaining about his neck. Five months later, Jerry had surgery on his neck due to jerking his head at the restaurant to avoid the shrimp. Another 5 months later (10 months from the date of the incident), Jerry had a 104-degree fever and went to the hospital for another spinal surgery. He contracted a severe infection and died on November 22, 2001.

Within the 2-year statute of limitations to file a tort lawsuit, his widow sued Benihana’s for $16 million dollars, mostly for pain and suffering and the loss of Jerry’s earning potential. Jerry’s widow argued that the chef was bad at tossing the shrimp and was asked during the dinner not to toss it anymore because it was dangerous, after hitting one of the other patrons in the forehead. She argued that the restaurant set in motion a chain of events resulting in Jerry’s death.

The restaurant’s attorney countered that there was no connection between the dining experience and Jerry’s death 10 months later. The chef testified and said that he couldn't remember exactly but if a diner told him not to flip the shrimp toward a customer then the chef would comply because the chef works for tips and wouldn’t want to upset the guest.  

The physicians who treated Jerry were not brought into the lawsuit, for unknown reasons. Probably because he signed a release prior to his surgeries as patients are required to do.

After four weeks of testimony in court, it took the jury less than two hours to render a verdict.

1. Who wins and why?

1a. What tort(s) might have occurred?

1b. What defense(s) might the restaurant raise in connection with liability for Jerry's death?